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Adjustment of Status for Derivative Beneficiaries

If you need help to apply for adjustment of status for derivative beneficiaries, get in touch with Tadeo & Silva Law. We are ready to help you. Call us now.

Author: Massiel Silva Tadeo, Founder, Tadeo & Silva

Attorney Massiel Silva Tadeo is a partner and owner at The Tadeo & Silva Law Firm. She specializes in removal (deportation) defense, family immigration, and hardship waivers. Updated on: September 19, 2023.

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Adjusting Status as Derivative Beneficiary

You may want to apply for a green card based on your relative’s eligibility if you are not directly eligible. In that case, you would be a derivative beneficiary of their immigration application. Derivative beneficiaries are an important part of the immigration system. However, the process and the requirements of applying as one can be quite technical.

It may be helpful if you understand the nuances surrounding derivative beneficiaries before you start your immigration journey. Exploring what it means to be a derivative beneficiary could also introduce you to more immigration possibilities.

What Is Adjustment of Status?

 

The term Adjustment of Status refers to the process of gaining a lawful permanent resident status. People who qualify for a Green Card and are already in the U.S. on some other temporary visa can apply for a Green Card without leaving the country through the process called “adjustment of status.” To apply for adjustment of status, one must file Form I-485 with the United States Citizenship and Immigration Services (USCIS.)

The other alternative to adjust status is by consular processing, which requires one to apply for a Green Card from outside the USA.

Who Is a Derivative Beneficiary?

principal applicant can directly petition a visa application. They can also adjust their status to a legal permanent resident.

derivative beneficiary, on the other hand, is an alien who cannot directly petition a visa application. In simple terms, derivative beneficiaries cannot file for a visa or an immigration petition themselves. They instead rely on the principal applicant to file such petitions on their behalf. A derivative beneficiary can either “follow to join” or “accompany” the principal beneficiary.

The immigration benefits received by a derivative beneficiary are similar to those enjoyed by the principal applicant. For instance, if a principal applicant petitions for a non-immigrant visa, the derivative beneficiaries, such as children and spouses, will also be granted non-immigrant visas.

Following-to-Join v. Accompanying

A derivative applicant either “accompanies” or “follows to join” the principal applicant. Neither term is defined in the Immigration and Nationality Act.

The Department of State interprets the two terms in the following way:

Accompanying: A derivative spouse or child is considered to be “accompanying” a principal applicant when derivative beneficiaries adjust their status or receive an immigrant visa within 6 months from when the principal applicant received their immigrant visa or successfully adjusted their status.

Following-to-Join: In contrast, there is no set time frame that a derivative must adhere to when “following to join” the principal applicant.

Eligibility Criteria for Derivative Spouses and Children

The Department of State’s Foreign Affairs Manual serves as a guide on who can be a derivative applicant. Usually, a spouse or a child acquired/born before the principal applicant arrived in the U.S. or adjusted status their status to become a legal permanent resident is regarded as a derivative beneficiary.

Alternatively, a child may be classified as a derivative beneficiary if they were born from a marriage that existed before a) the admission of the principal applicant to the U.S. as an immigrant or b) the principal applicant became a legal permanent resident.

A derivative spouse or child will have the same priority date as the principal applicant. The principal applicant’s immigrant petition is filed months before the adjustment of status. So, utilizing the principal applicant’s priority date speeds up the derivative beneficiary’s visa processing.

Derivative Spouse

A derivative spouse can use the principal’s priority date when the following criteria are met:

  • The marriage between the principal and derivative spouse must have been previously acquired, i.e., it already existed when the principal adjusted status or acquired a Green Card.

  • The marriage continues to exist when the derivative beneficiary applies for adjustment of status.

  • The principal remains a legal permanent resident (Green Card holder) when the derivative adjusts status.

Derivative Child

The derivative child can use the principal’s priority date when the following conditions are met:

  • The derivative child was acquired before the principal adjusted status or acquired a Green Card.

  • The child is unmarried and under 21 or otherwise qualifies as a child under the provisions of the Child Status Protection Act, if applicable

  • The principal remains a legal permanent resident (Green Card holder) when the derivative adjusts status.

Applying in a Category That Allows for Derivative Beneficiaries

Not all green card categories allow for derivative beneficiaries. So you need to confirm that the principal applicant’s category does so before proceeding. You may consult an experienced immigration attorney to verify this. The following are some categories that allow for derivative applicants:

  • Family-based preference category
  • Employment-based visas
  • Diversity visas

Adjustment of Status Process for Derivative Beneficiaries

The principal applicant and any derivative beneficiaries are eligible to submit applications for permanent residence simultaneously.

The Department of State publishes a monthly visa bulletin showing the available immigrant visas. You must check if a visa is available based on the principal applicant’s priority date. Once a visa is available, both applicants can file for adjustment of status. This is done by filing Form I-485 with the United States Citizenship and Immigration Services.

Form I-485 is an Application to Register Permanent Residence or Adjust Status that is filed to change your status as a derivative beneficiary. In the form, you must indicate whether you are a primary applicant or a derivative beneficiary.

The USCIS reviews the application and conducts background checks. You will likely need to attend an I-485 Interview. Once the interview is concluded, the USCIS will make a decision. The USCIS will approve a derivative applicant’s Form I-485 only if the principal’s form is also approved. The derivative beneficiary becomes a lawful permanent resident if both forms are approved.

Tadeo & Silva Law Can Help You!

Filing for adjustment of status through marriage or in the capacity of a derivative beneficiary is a common immigration route. However, it can also be very complicated to understand.

The immigration process, while complex, is navigable with proper guidance. All steps need to be taken carefully to ensure a successful adjustment of status for derivative beneficiaries. Your journey doesn’t have to be a solo endeavor. The right legal team can make a significant difference.

At Tadeo & Silva Law, we’re dedicated to making your immigration process as smooth as possible. We invite you to reach out to us today for a consultation. Let us discuss your unique situation and provide personalized advice and assistance.

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