When someone applies for a green card or a visa, their spouse and any unmarried children younger than 21 can often receive similar benefits. For both nonimmigrant benefits (temporary visas) and immigrant benefits (a green card), it can be possible for a spouse and young children to get a derivative immigration status.

Temporary Visas

For instance, if you get an H-1B visa, then your spouse could get the derivative visa called an H-4 visa. If your application for an L-1 visa was accepted, then if you have any children younger than 21 who are unmarried, then they can submit an application for L-2 visas. Derivative visa holders often have the chance to get a work permit, known as an Employment Authorization Document (EAD).

These are just a couple examples; there are many other nonimmigrant visas that have derivative visas available for the visa holder's spouse and qualifying children. This will not always be the case though. For example, B-1 and B-2 visitor visas do not open the door to any derivative visas.

One key provision of these derivative visas is that the first applicant must maintain that visa. Going back to the H-1B visa example, let's say that you lost the job that qualified you for this visa, and you can't find another H-1B position. Your H-1B visa would end, and your spouse would also lose their H-4 visa. Again, if your L-1 visa expires, then your spouse's or children's L-2 statuses and EAD's would expire as well.

If you are a visa holder and your family members are going to apply for a derivative visa, then you will have to give papers to officials that prove your relationship. This would include supplying a marriage certificate for a spouse, and providing long-form birth certificates for your child, a certificate that has your name on it as a parent.

Permanent Resident Status

Similarly, there are derivative benefits for qualifying family members of a green card applicant. This only applies to the first, or principal applicant. For example, a child who has a derivative benefit from a parent who is applying for a green card cannot pass on that derivative benefit to their own child. In some cases, it may be better for a relative to apply for a green card separately, apart from a derivative benefit. This is a very complex decision to make however, as there are many factors to consider. You can contact an immigration lawyer with any questions. You should also talk to a legal professional if you are worried that a child might "age out" of derivative benefits.

But first off, what exactly are these derivative immigrant benefits anyway? One huge derivative benefit is one of preference category. This means that if a principal applicant is applying for a family-based or employment-based green card, their spouse and unmarried children under the age of 21 might be able to get into that same preference category. For example, let's say you're the principal applicant, and you are in the employment-based first preference category. Then your spouse and qualifying children could get the derivative benefit of being placed in that same preference category, with everyone ideally being able to gain permanent residency at the same time, less waiting for everyone. There is one HUGE exception to this. If a principal applicant is applying in the preference category of an immediate relative of a U.S. citizen, their spouse and young, unmarried children cannot get that same preference category.

This can be a very complicated process, filled with exceptions, plagued with delays, and dotted with loopholes. To make sure that your case proceeds as smoothly as possible, be sure to contact an experienced immigration attorney as soon as you can!