Derivative Employment-Based Adjustment Applicants

Who can adjust as a derivative of an employment-based immigrant?

Which employment categories allow derivative beneficiaries?

Derivative benefits generally accompany the principal employment-based preference classification.

Who qualifies as a derivative spouse?

The marriage must satisfy immigration-law requirements and generally must exist before the principal becomes a lawful permanent resident if the spouse is to obtain derivative residence through that principal.

USCIS may examine:

• Whether the marriage is legally valid;
• Whether any prior marriages were properly terminated;
• Whether the marriage occurred before the principal obtained permanent residence;
• Whether the marriage remains legally valid when required; and
• Whether any separate marriage-related inadmissibility or fraud issue exists.

A spouse who marries the principal only after the principal has already become a lawful permanent resident ordinarily does not acquire derivative status through the completed employment-based case. A separate family-based petition may instead be required.

Who qualifies as a derivative child?

For immigration purposes, a derivative child generally must meet the INA definition of “child,” including the applicable age and marital-status requirements.

Common qualifying relationships can include:

• Biological children;
• Qualifying stepchildren when the creating marriage occurred before the child's 18th birthday;
• Qualifying adopted children under the applicable statutory requirements; and
• Other relationships satisfying the INA definition of child.

A derivative child generally must remain unmarried. Age issues require separate analysis under the Child Status Protection Act.

The Child Status Protection Act can preserve derivative eligibility

Employment-based derivative children can age toward 21 while the principal's immigrant petition or visa category remains pending.

The Child Status Protection Act can protect some children from aging out by calculating a statutory CSPA age rather than relying solely on biological age.

The analysis can involve:

• The child's biological age when a visa becomes available;
• The amount of qualifying petition pendency that may be subtracted;
• The date visa availability occurs under current USCIS CSPA policy;
• The requirement to remain unmarried; and
• The requirement to seek to acquire lawful permanent residence within the applicable statutory period, subject to recognized exceptions.

See Child Status Protection Act and Form I-485.

The derivative uses the principal's priority date and visa category

A derivative generally receives the same employment preference classification and priority date as the principal applicant.

Visa availability therefore depends on:

• The principal's employment-based preference category;
• The qualifying priority date;
• The derivative's country of chargeability or a permissible cross-chargeability rule;
• The applicable Visa Bulletin cutoff; and
• The chart USCIS authorizes adjustment applicants to use for filing.

See Visa Availability for Derivative Applicants.

Cross-chargeability can be especially important for married couples

A principal or derivative spouse may sometimes use the other spouse's country of chargeability when the statutory cross-chargeability requirements are satisfied.

This can make a dramatic difference when one spouse was born in a country with a substantial employment-based backlog and the other spouse was born in a country with a more favorable cutoff.

Cross-chargeability changes the visa-number analysis; it does not change which spouse is the principal beneficiary of the employment petition.

See Cross-Chargeability for Form I-485.

Each derivative files a separate Form I-485

Derivative status does not mean the family files one combined adjustment application.

Each applicant generally submits a separate Form I-485 with the supporting evidence applicable to that person.

A derivative filing commonly includes:

• Form I-485;
• Evidence of the principal's qualifying immigrant petition and adjustment filing or approval;
• Marriage certificate or birth certificate establishing the derivative relationship;
• Passport and identity documents;
• I-94 or other admission or parole documentation;
• Immigration-status records;
• Medical examination documentation;
• Evidence relating to any individual ground of inadmissibility; and
• CSPA or cross-chargeability evidence when applicable.

The principal and derivative can file Form I-485 together

When an immigrant visa is available and both applicants are otherwise eligible, a spouse or child can generally file Form I-485 with the principal applicant.

The derivative may also be able to file after the principal has filed if:

• The principal's qualifying adjustment case remains pending;
• The qualifying derivative relationship exists;
• An immigrant visa is available for the derivative; and
• The derivative independently qualifies for adjustment.

Visa availability must be checked for every filing date rather than assumed from the principal's earlier filing.

Following-to-join after the principal becomes a permanent resident

A spouse or child who qualified as a derivative before the principal became a permanent resident may sometimes immigrate later as a following-to-join derivative rather than through a new family preference petition.

The continuing availability of derivative treatment depends on the qualifying relationship and the facts of the case.

Important distinctions include:

• Whether the marriage or parent-child relationship existed before the principal obtained permanent residence;
• Whether the child remains eligible under the INA and CSPA;
• Whether the family member is adjusting in the United States or processing abroad; and
• Whether the principal's underlying immigrant classification supports derivatives.

The derivative must independently satisfy INA §245(a)

The principal's eligibility does not cure defects in the derivative's own entry history.

A derivative adjustment applicant ordinarily must independently establish the applicable INA §245(a) requirements, including inspection and admission or parole unless another statutory provision supplies an adjustment route.

Adjustment bars are tested separately for each derivative

Employment-based derivative applicants may be subject to INA §245(c) adjustment bars based on their own immigration conduct.

Potential issues include:

• Failure to maintain lawful status;
• Unlawful immigration status on the filing date;
• Unauthorized employment;
• Violation of the terms of nonimmigrant admission;
• Entry without inspection;
• Visa Waiver Program restrictions;
• J-1 foreign residence requirements; and
• Other category-specific adjustment bars.

The principal's clean immigration history does not erase a derivative's separate violation.

Derivative applicants can independently use INA §245(k)

A qualifying derivative spouse or child in an employment-based category may potentially use INA §245(k) based on the derivative's own immigration history.

The derivative's §245(k) eligibility is not simply copied from the principal.

USCIS must examine the derivative's:

• Relevant lawful admission;
• Failure to maintain lawful status;
• Unauthorized employment;
• Other violations of the terms and conditions of admission; and
• Aggregate number of covered days.

See Derivative Spouses and Children Under INA §245(k).

Each derivative must independently be admissible

Every Form I-485 applicant is evaluated for inadmissibility under INA §212.

A derivative may therefore face an issue that does not exist for the principal, including:

• Criminal inadmissibility;
• Fraud or willful misrepresentation;
• Unlawful presence;
• Prior removal or deportation;
• Health-related inadmissibility;
• False claim to U.S. citizenship;
• Smuggling or other immigration violations;
• Security-related grounds; or
• Another individual statutory ground.

Where a waiver is available, qualifying-relative requirements and discretionary factors must be evaluated for the individual derivative.

What if the principal's I-140 is withdrawn?

Derivative eligibility ordinarily depends on the principal maintaining a valid employment-based immigrant basis.

If an employer withdraws the principal's I-140, the consequences depend on the applicable petition-validity and portability rules.

If the principal preserves the case through INA §204(j), qualifying derivatives can ordinarily remain connected to the principal's employment-based adjustment case.

See I-140 Withdrawal After 180 Days.

What if the principal changes employers?

A qualifying principal applicant may use INA §204(j) job portability after satisfying the statutory and regulatory requirements.

The derivative spouse or child does not independently need to prove that the principal's new position is same or similar. That issue concerns preservation of the principal's immigrant petition.

But if the principal loses eligibility, the derivative's employment-based adjustment basis can also be lost.

What happens if the principal transfers the underlying basis?

A principal applicant may ask USCIS to transfer a pending Form I-485 from one immigrant petition or category to another.

For a derivative to remain attached to the transferred case:

• The principal must maintain eligibility through the transfer;
• The qualifying relationship must continue to exist; and
• The new immigrant basis must permit derivative beneficiaries.

If the principal transfers to a category that does not provide derivative status, the derivative can lose eligibility through the principal.

See Transfer of Underlying Basis / Interfiling.

What if the derivative has an independent green card basis?

A derivative applicant may later acquire an independent immigrant basis, such as:

• An employer-sponsored I-140;
• An EB-1A petition;
• An EB-2 National Interest Waiver;
• A family-based petition;
• Another qualifying immigrant classification.

The applicant may consider whether to retain derivative processing or request transfer to the independent immigrant basis.

That decision can affect adjustment bars, priority dates, visa availability, derivatives of the former derivative, and case strategy.

Marriage during the principal's pending adjustment case

If an employment-based principal marries before becoming a lawful permanent resident, the new spouse may potentially obtain derivative classification if the relationship is established in time and the other requirements are satisfied.

If the marriage occurs only after the principal has already become a lawful permanent resident, the new spouse ordinarily cannot become a derivative of the completed employment-based immigration process.

A family-based petition may then be required.

Children born during the process

A child born before the principal becomes a lawful permanent resident may potentially qualify as a derivative if the statutory definition of child and other requirements are satisfied.

The family should evaluate:

• The child's date of birth;
• The principal's adjustment or immigrant visa approval date;
• Whether the child is in the United States or abroad;
• Visa availability;
• CSPA eligibility; and
• The appropriate adjustment or consular procedure.

Employment authorization for derivative applicants

A derivative with a pending Form I-485 may generally apply for adjustment-based employment authorization under the applicable eligibility category.

The derivative does not receive employment authorization merely because the principal has a valid I-140 or employment-based job offer.

Current employment authorization may instead arise through:

• The derivative's own nonimmigrant status;
• Employment authorization incident to qualifying status;
• An employment authorization document; or
• Lawful permanent resident status after adjustment approval.

International travel by derivatives

Each family member should independently evaluate the consequences of international travel while Form I-485 is pending.

A principal's ability to travel does not automatically mean that the derivative has:

• A valid visa;
• Valid nonimmigrant status;
• A valid advance parole document;
• No unlawful-presence issue;
• No prior removal problem; or
• No other ground affecting return to the United States.

Travel should therefore be analyzed separately for each applicant.

EB-5 derivatives receive conditional residence

EB-5 derivative spouses and children have an additional issue because residence obtained through the qualifying EB-5 investment is generally conditional under INA §216A.

The derivative family member may later need to be included in, or in some circumstances independently pursue, the removal-of-conditions process associated with the EB-5 investment.

See EB-5 Adjustment of Status.

Evidence checklist for derivative employment adjustment

• Principal's Form I-140 receipt or approval notice.
• Principal's Form I-485 receipt or permanent resident evidence, as appropriate.
• Derivative's separate Form I-485.
• Marriage certificate for a derivative spouse.
• Birth or other qualifying relationship evidence for a derivative child.
• Evidence terminating prior marriages when applicable.
• Passport and identity documentation.
• I-94 and entry records.
• Immigration-status history.
• Employment authorization history.
• CSPA calculation and sought-to-acquire evidence where applicable.
• Cross-chargeability evidence where applicable.
• Medical examination documentation.
• Evidence addressing individual inadmissibility issues.
• Evidence concerning §245(k) when needed.

Common derivative adjustment problems

Primary authorities

Related INA245.com guides

Frequently asked questions