Derivative Immigration Status For Family Members of Immigrating Aliens

Derivative benefits flow through the main visa or green card applicant in some cases, allowing a spouse or unmarried child under the age of 21 to immigrate at the same time.

You might have heard of "derivative benefits" or "derivative classification" in discussions of U.S. family-based immigration. In a nutshell, derivative benefits flow through the main visa or green card applicant, allowing a spouse or unmarried child under the age of 21 to immigrate at the same time. If you are the main applicant, your spouse and children, or "dependents" in immigration parlance, can often receive the same or similar immigration benefits that the U.S. grants you, provided you lawfully maintain those benefits yourself.

Derivative benefits break down roughly into two categories:

  1. nonimmigrant derivative benefits and
  2. immigrant, or permanent resident, derivative benefits.

Let us take a look at these two concepts.

Nonimmigrant Family Derivative Immigration Benefits

Nonimmigrant visas are granted under U.S. immigration law to foreign nationals who have shown that they intend to stay in the U.S. for a limited time period. Popular nonimmigrant visa types include the B-1/B-2 visitor, H-1B specialty worker, L-1 intracompany transferee, and TN (for Canadian and Mexican workers).

Many of these visa types allow for spouses and children of the visa holder to acquire a related nonimmigrant visa type as a derivative benefit. For example, the spouse of an H-1B visa holder can apply for an H-4 visa, and the unmarried, under-21 children of an L-1 visa holder can apply for L-2 visas.

Some (but not all) nonimmigrant derivative visas also allow their holders to apply for work authorization, through an Employment Authorization Document ("EAD"). With the EAD, the spouse or children of the primary visa holder can take up work while in the United States. The L-2 visa, as an example, allows a spouse or child L-2 visa holder to apply for an EAD.

Certain nonimmigrant visa types, however, do not provide for derivative benefits at all, including the B-1/B-2 visitor visas.

The most important thing to note is that nonimmigrant derivative visas are granted and remain valid only if the main, or principal, visa holder's visa is granted and remains valid.

For example, if an H-1B visa holder is fired from an H-1B position and is unable to find another employer willing to provide sponsorship for a new H-1B, U.S. immigration officials will consider that person as out of status, and, as a consequence, consider any H-4 visa-holding spouse to also be out of status.

Similarly, if a principal L-1 visa holder's L-1 status ends, so too does the L-2 status and work authorization of the spouse and children.

Documenting the Family Relationship for Nonimmigrant Derivative Visa

To qualify for derivative nonimmigrant visas and benefits, you must, in most cases as part of the primary applicants application, submit documents to the relevant U.S. immigration authorities proving your familial relationship. These can include, for example, copies of your marriage certificate (for spouses) or copies of your children's long-form birth certificates, listing the main applicant's name as one of the parents. You might need to provide an English translation, as well.

Immigrant/Permanent Residence Derivative Benefits

Derivative benefits for U.S. permanent residence are rooted in the same basic idea: Immigration-related benefits flow to the spouse and children of a principal applicant based on the validity of the principal's eligibility for immigration benefits.

However, the results vary, depending on the timing of when the principal alien applies for permanent residence and whether, in family-based cases, the immigrants are so-called immediate relatives or preference relatives. (For an overview of these categories, see Paths to Permanent Resident Status.)

Derivative Immigrants Are Placed in the Same Immigrant Visa Preference Category

In cases where principal aliens are in one of the immigrant visa "preference categories" defined by law (which are subject to annual numerical limits and therefore often involve long waits for a green card), their spouses and unmarried children under the age of 21 are entitled to the same permanent residence visa preference as they (the principal aliens) are.

Preference categories can be either employment-based or family-based.

Derivative benefits can be incredibly important here. If a principal alien has a favorable visa preference category (aside from "immediate relative" as discussed below), the principal's spouse and children can also benefit from that visa preference. For example, if a principal applicant qualifies for an employment-based first preference, his or her spouse and unmarried, under-21 children can "derive" that preference and gain immediately available visa numbers as well. The waiting line for the whole family is shortened.

You Can Derive Status Only From a Primary Applicant

The U.S. Congress put certain limits on derivative benefits. A foreign national cannot derive benefits from another who is already receiving derivative benefits. The children in the employment-based immigrant example above might be able to derive an immediately available immigrant visa through the principal, but any offspring of those children, or anyone else, cannot derive the same benefit from the children.

This is where things can become confusing and difficult. The key is to identify the principal applicant. In the employment-based example above, the principal is the parent who is being sponsored by an employer for a green card.

In a situation where a foreign national who already holds a green card is sponsoring his or her spouse for permanent residence, the spouse becomes the principal applicant, and any children of the spouse will derive their benefits (and their immigrant visa preference) through him or her.

In the latter situation, the spouse and her children might be better served by having the sponsoring green card holder file individual petitions for each family member, especially if the sponsoring green card holder will naturalize and become a U.S. citizen and therefore an immediate relative (see the next section). Consult an immigration attorney if you have questions regarding your family's permanent residence applications.

Aging Out of Visa Eligibility and the Child Status Protection Act

A huge concern for foreign nationals with children is "aging out." As you might have noticed, we have been describing children in this article as "unmarried" and "under the age of 21." The law does not allow children who are themselves married or over 21 years of age to derive benefits from a principal applicant. Thus, the timing of derivative permanent residence applications can be critical for children; if too much time goes by before approval, the child could age out.

Recognizing this problem, Congress passed the Child Status Protection Act ("CSPA") in 2002. The CSPA uses a complicated formula to toll, or "pause," the age of derivative beneficiary children. The CSPA formula is quite complex. If you believe your children might age out before being able to apply for U.S. permanent residence, contact an immigration attorney, who can analyze your situation right away.

You Cannot Derive an "Immediate Relative" Preference

Derivative benefits do not apply to aliens who are considered "immediate relatives." This affects how you will carry out your application process, as well as eligibility in some cases.

Immediate relatives are foreign nationals who are the spouse, unmarried child under the age of 21, or parent (if the petitioner is 21 years of age or older) of a U.S. citizen petitioner. Immigration law allows immediate relatives to "skip" the wait for an immigrant visa number; in other words, immediate relatives can apply for permanent residence right away and can even apply simultaneously with the sponsoring U.S. citizen's immigrant petition for them.

However, the law also says that an alien cannot "derive" an immediate relative classification. Thus, if an alien spouse, child, or parent is classified as an immediate relative, that alien's spouse or children cannot also claim immediate relative preference as a derivative beneficiary and must separately qualify for residence through the primary petitioner and have separate immigrant petition (Form I-130) filed on each of their behalf. This often creates problem for stepchildren, for example, who qualify only if the parents married before they turned 18.

One narrow exception for immediate relatives exists in the case of an alien who is the widow or widower of a U.S. citizen. Under certain conditions, a widow or widower of a U.S. citizen can file a "self-petition" to be classified as an immediate relative, and the unmarried, under-21 child of that widow or widower may derive immediate relative classification. Note that this is a very restricted exception.

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