When an individual applies for lawful permanent resident (LPR) status (commonly, a green card) in the United States, certain family members may also qualify for LPR status as derivative beneficiaries. Such family members typically include the principal applicant’s spouse and any unmarried children under the age of 21. However, eligibility for derivative status depends not only on the qualifying family relationship but also on the timing of when that relationship was legally established in relation to the principal applicant’s green card process.
Green Card Processes that Allow for Derivatives
Both employment-based and family-preference category green card processes allow for derivative beneficiaries to be included in the principal applicant’s process. However, the immediate relative category, such as where a U.S. citizen petitions for a parent or spouse, does not allow for the inclusion of derivative beneficiaries and each dependent family member must be individually petitioned for.
For example, if an LPR files a petition for a spouse in the second-preference family-based category, then the spouse’s eligible child can be included as a derivative on the parent’s petition. However, if a U.S. citizen petitions for a spouse, the spouse’s child cannot be included as a derivative and must be separately petitioned for by the U.S. citizen.
Timing of the Qualifying Relationship
For employment-based green card cases, it is a common misconception that a spouse or child must be included in the principal’s green card process during the PERM labor certification or I-140 immigrant petition stage. In truth, for both employment-based and family-preference category green card processes, a spouse or child can be included as a derivative beneficiary if the qualifying family relationship existed before the principal applicant obtains permanent residence. This means that as long as the principal and dependent spouse were legally married or a parent-child relationship existed before the principal’s green card is approved or before the principal is admitted to the U.S. as an LPR, the spouse or child may be eligible for derivative status.
If the marriage occurs after the principal obtains a green card, the spouse will not qualify as a derivative and would in turn need to be sponsored by the LPR as a spouse beneficiary. The same may be true for a child born after the principal obtains LPR status (unless the child is born in the U.S. and is thus a U.S. citizen). However, under certain circumstances, a child born to an LPR abroad may be eligible for admission as a lawful permanent resident without sponsorship, as explained in the MurthyDotCom InfoArticle U.S. Entry for Child of a Lawful Permanent Resident Born Abroad (17.Aug.2023)
Accompanying vs. Following to Join
Where a derivative beneficiary can be added to a principal’s green card process, the derivative can choose whether to “accompany” and apply for a green card or immigrant visa at the same time as or within six months of the principal applicant, or to “follow-to-join” and immigrate at a later date than the principal applicant. There typically is no maximum timeframe within which a derivative can follow to join, provided that the derivative continues to maintain the qualifying relationship with the principal applicant.
Age Considerations for Derivative Children
It is important to keep in mind that even where a child is initially included as a derivative beneficiary in a parent’s green card process, the child may be at risk of aging out of the parent’s petition, unless the child is protected by the Child Status Protection Act (CSPA), as explained in the MurthyDotCom InfoArticle, Child Status Protection Act Basics, Part 1 and Part 2.
Conclusion
Understanding when a spouse or child can be included in a principal applicant’s green card process is essential to ensure that a family can immigrate to the U.S. as a single unit. Given the complexity of these requirements, individuals are strongly encouraged to schedule a consultation with an experienced immigration attorney to navigate the process effectively.
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