The USCIS prefers not to separate families. Chargeability allows a spouse or child of a preference immigrant to “accompany” or “follow to join” the principal beneficiary of an immigration visa – by charging their priority date to the country of the principal beneficiary. If the spouse or children can’t adjust their status independent of their relationship with the principal immigrant, the spouse/child “derives” their status from the principal immigrant.

The terms “accompany” and “follow to join” are different. The Department of State “generally considers the derivative spouse or child to be “accompanying” the principal when issued an immigrant visa or adjusting status within six months of the date DOS issues a visa to the principal or the date the principal adjusts status in the United States.”

“ In contrast, there is no specific time period during which a derivative must follow to join the principal.”

Who qualifies as a derivative spouse?

The derivative spouse can use the priority date of the principal immigrant if all of the following apply:

  • “The marriage between the principal and the derivative spouse existed at the time the principal either adjusted status or was admitted to the United States as a lawful permanent resident (LPR).”
  • “The marriage continues to exist at the time of the derivative’s adjustment of status.”
  • “The principal remains in LPR status at the time the derivative adjusts status.”

Who qualifies as a derivative child?

The derivative child can use the priority date of the principal immigrant if all of the following apply:

  • “The derivative child was acquired prior to the time the principal either adjusted status or was admitted to the United States as an LPR”
  • “The child continues to qualify as a child under the statutory definition (unmarried and under 21 years old) or otherwise under the provisions of the CSPA, if applicable”
  • “The principal remains in LPR status at the time the derivative adjusts status.”

If a principal’s natural born child is born after the LPR admission date or adjustment – the child may accompany or follow to join the principal as a derivative – if born of a marriage that existed at the time of the principal’s admission or adjustment to LPR status. In this scenario, the child “is considered to have been acquired prior to the principal’s obtaining LPR status and is entitled to the principal’s priority date.”

“An adopted child who was not able to accompany the principal because the two-year legal custody and joint residence requirements had not yet been met when the principal immigrated may become eligible to follow to join the principal. This may apply in cases where the child still qualifies as a “child” once the legal custody and joint residence requirements are met. Residing with either adoptive parent will meet the joint residence requirement with respect to each adoptive parent.”

Derivative Spouse and Child

USCIS can’t approve the Form I-485 for a derivative applicant until the principal applicant has been granted lawful permanent resident status – except for “U nonimmigrants, asylee derivatives, and refugee derivatives adjusting status.”

A few other ways some additional family members may qualify as derivative applicants (which means they can adjust their stats) include:

  • “Adjustment applicants in T or U nonimmigrant status”
  • “Applicants under Section 13 of the Act of September 11, 1957 (Public Law 85-316)”
  • “Those applying as dependents under HRIFA”

For help understanding, if a relative qualifies for derivative status, call Herman Legal Group at 1 (800) 808-4013 or complete our contact form to speak with us.

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