Derivative immigration status for family members
I-140 derivative green card: who qualifies and how family members apply
When an employer files an I-140 for a worker, the worker’s spouse and unmarried children under 21 can usually immigrate as derivative beneficiaries in the same EB category. This process, known as an I-140 Derivative Green Card, can be complex. However, timing depends on priority dates, visa bulletin availability, and whether your family is in the U.S. (adjustment) or abroad (consular).
Who counts as a derivative
Spouse (legally married).
Unmarried children under 21 (natural, step, or adopted per immigration rules).
Children must remain unmarried until green card issuance; marriage ends eligibility.
Two ways to apply
Adjustment of Status (AOS) in the U.S.: File I-485 when your EB category/chargeability is current (or eligible for concurrent filing with the I-140).
Consular Processing (CP) abroad: The NVC collects fees/forms and schedules a visa interview once a number is available.
Therefore, choose the path that fits each family member’s location and status.
“Accompanying” vs “Following-to-Join”
Accompanying: Derivatives enter or adjust within 6 months of the principal.
Following-to-join: Derivatives apply after the principal becomes a resident, without a new I-140 or I-130. Instead, use Form I-824 (if needed) to open NVC processing.
Work and travel while AOS is pending
Derivatives filing I-485 can apply for EAD (work permit) and Advance Parole for travel. Consequently, many families rely on I-765/I-131 combo cards while waiting.
Keeping kids under 21 (CSPA for EB cases)
The Child Status Protection Act (CSPA) can freeze a child’s age on the visa availability date and subtract the I-140 pending time.
If CSPA age <21 on your “final action” date, the child may still qualify—but you must seek to acquire (pay fees/file forms) within required timelines.
If a child ages out, consider F2B or other options; we plan early to avoid a gap.
Cross-chargeability (family uses the better country)
If spouses were born in different countries, the family can often use the more favorable chargeability, which may accelerate filing. As a result, many couples avoid long backlogs.
Medical exams & admissibility
Everyone needs a clean inadmissibility screen (no certain crimes, misrepresentation, or medical/public-charge issues).
For AOS, submit Form I-693 medical exam (or bring to interview). For CP, complete the panel physician exam abroad.
H-4/L-2 and other nonimmigrant statuses
Derivatives may remain in dependent status (e.g., H-4/L-2) until filing AOS or departing for the interview. In addition, some can obtain work authorization (e.g., L-2 incident to status, H-4 EAD where eligible).
Evidence checklist (derivatives)
Passports, visas, I-94 records
Marriage certificate; birth/step/adoption records for children
Photos, civil documents, and police certificates for CP (as required)
I-140 receipt/approval, priority date proof, and copy of the principal’s I-485 or green card
I-693 (AOS) or panel exam (CP)
Proof of bona-fide marriage if requested (joint lease, taxes, bank accounts)
FAQs
Do derivatives need a separate I-140?
No. They use the principal’s approved I-140.
Can a derivative file I-485 before the principal?
Usually no—the principal must be eligible to file (or have filed) first, except rare scenarios.
My child turned 21—are we done?
Not always. CSPA may protect eligibility. Therefore, calculate CSPA age and act fast to “seek to acquire.”
We’re abroad but the principal is adjusting in the U.S.—is that okay?
Yes. Use following-to-join via I-824 to start NVC processing once the principal is a resident.
What if we divorce during the process?
A spouse loses derivative eligibility upon divorce before green card issuance.
How we help
First, we map filing windows (concurrent vs. visa-current) and CSPA for each child. Next, we choose AOS vs CP per family member and open following-to-join if needed. Then, we prepare complete packets (medical, civil docs, work/travel). Finally, we respond to RFEs and coordinate interviews so the whole family lands status smoothly.
Need a plan for an I-140 derivative green card? Schedule a consultation or call (562) 495-06554
Disclaimer: General information, not legal advice. Visa availability and policies change; we confirm current rules before filing.
I-140 Derivative Green Card. A person applying for an I-140 derivative green card seeks immigration benefits through a principal applicant. This type of applicant cannot petition for permanent residence or adjustment of status directly. A derivative may be a spouse, child under 21, parent or sibling of a U.S. citizen, or permanent resident. This ability to obtain immigrant visas for one’s derivatives does not extend beyond spouses and children. The incoming immigrant cannot, for example, bring in parents, brothers and sisters, or grandchildren. A principal applicant on Form I-485 is the primary or main intending immigrant named on an immigrant petition. If you are the only applicant in your family that is adjusting status, you are a principal. Most people are principal applicants.
