If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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Q - A green card holder filed an I-130 in 1991 (which was approved in 1992 for his wife).  All the children are included on the petition as derivative beneficiaries in F-2A family category. One son has now turned 21, but the priority date is almost current for F-2B from Mexico .  The mother died in 1997 without immigrating.  The son is now in removal proceedings. Can the son possibly adjust status in front of an immigration judge based on this petition?  Can the son use this old petition?   

He was and is a beneficiary.  The petitioner is still alive and still has a green card. Does the fact that the primary beneficiary died void the petition?  

A - The State Department Foreign Affairs Manual addresses this subject:  

42.53 N8 Death of Principal Beneficiary

(TL:VISA-61; 6-5-92)

In the case of the death of the principal beneficiary prior to admission to the United States , neither the petition nor the priority date would remain valid for a derivative beneficiary.  

The problem in this case is that the children are derivative beneficiaries and the death of the mother, the principal beneficiary, means the children lose their place in line. If the father had filed separate I-130s for each child in 1991, then this would not have been a problem. There are provisions in the law that protect beneficiaries in the case of the death of a petitioner, but those laws don’t come in to play here.  

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Q - I am currently on an F-1 student visa, and want to start an investment club as a partnership.

Currently, about a dozen of my fellow students want to pool together our money to invest in stocks together and to safeguard our own interests we will like to set it up as a partnership. Being foreign citizens on an F-1 student visa, will this be a violation of our status to be a partner of an investment club? If not, what other legal alternatives do we have to safeguard each person’s stake?  

A - Investing in the stock market has traditionally been viewed as a passive activity that does not constitute employment. While I have never seen this specific question addressed, my assumption is that this would be treated the same way as investing on your own. Setting the club up as a partnership is going a step further than simply investing personal funds, but I doubt that act itself would be the step that raised this from a passive activity to meeting the definition of "employment" under immigration law.   

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Q - I am a permanent legal resident. My current green card is valid until 2015.   I have been married to a US citizen for 6 years. I have aged parents in Peru .   If I need to visit them in case of emergency, are there any documents I need to take with me (apart from my Green Card) for when I return through US Immigration?    

A - You should just need the green card and your unexpired passport to get back in to the US on each trip.  If you plan on staying for extended periods abroad, you might find the article I’ve written at http://www.visalaw.com/06feb1/2feb106.html helpful.  

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Q - I filed an I-485 and I-140 employment-based green card case together for me and my family by virtue of an approved labor certification in July 2007. I have a son studying overseas who will turn 21 in April 08 and he was not included in the application for change of status because he is not in the US . Can she still be qualified to be added in our green card petition even after she turns 21? 

A - Your son might be eligible to apply for an immigrant visa as your derivative beneficiary, but it depends on a number of factors: 1) What preference category your I-140 was filed under; 2)what your priority date is; 3) when your priority date became current under the visa bulletin; 4) How long it takes USCIS to approve your I-140; and 5) (if a visa is not currently available) When a visa again becomes available for your petition.  

For there to be any chance for your son to apply as your derivative, you will need to file a Form I-824, if you have not done so already. Your immigration lawyer should be able to help evaluate whether your son will qualify after you go over the above-stated questions.  

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Q - I have worked in the US before on an 18 month J-1 trainee visa. Is it possible to go back on a second J-1? I was under the impression that you could only have one.  

A - If you’ve remained outside the US for two years, you might be able to come back in. Trainees are eligible for additional training programs after a period of at least two years residency outside the United States following their initial training program. Participants who have successfully completed internship programs and no longer meet the selection criteria for internship programs may participate in a training program after a two-year period of residency outside the United States following their internship program. As long as participants meet the selection criteria and fulfill these conditions, there is no limit to the number of times they may participate in a training and internship program.