In the world of U.S. immigration law, the term “derivative” may come into frequent view, but what exactly does it mean? Understanding the concept of a derivative is crucial for those seeking to successfully navigate the U.S. immigration process, especially in family-based cases.
That is why in this Jaskot Law article, we carefully explain what an immigration derivative is, who can access this benefit, and how to add a derivative to a petition. In addition, our team of experienced attorneys is available to help you navigate the complex U.S. immigration process.
What does it mean to emigrate as a derivative beneficiary?
To immigrate as a derivative beneficiary means that a person is permitted to travel to the United States as a result of a relationship with the principal beneficiary of a visa or immigration status. This means that family members can obtain the same benefits as the principal beneficiary and the immigration status he or she holds.
For example, in the context of an employment-based immigrant visa, a person who obtains employment in the United States may include his or her spouse and/orunmarried children under the age of 21 as derivative beneficiaries, which would also allow them to live and work in the country. At the same time, if the primary beneficiary loses his or her legal status, the derivative beneficiaries could also lose their legal status.
The concept of an immigration derivative is fundamental in visa and green card applications, as it allows families to stay together in the United States, providing the opportunity for family members to work or reside in the country and build a future together on U.S. soil.
Eligibility for an immigration case derivative beneficiary
Eligibility for an immigration derivative beneficiary may be subject to factors concerning the type of visa or specific immigration status, but generally, we can say that persons who fall into the following categories may be eligible for an immigration referral.
- For family-based visas, immediate family members of the principal beneficiary, such as spouses and unmarried children under the age of 21, may be considered as derivatives in petitions for family-based visas, employment-based visas, and asylum or refugee programs.
- In the case of employment-based visas, such as the H-1B, spouses and dependents may apply for an H-4 visa.
- For asylum applicants, eligibility to include derivatives extends to family members who are in the United States or abroad at the time of application.
It is important to remember that in order for a derivative beneficiary of an immigration case to receive extended visa benefits or principal beneficiary status, it will be of utmost importance to present all the documentation and comply with the pertinent requirements stipulated by the U.S. government. Among other things, a derivative beneficiary must demonstrate the relationship with the principal beneficiary, and provide evidence of such relationship.
Which visas allow a derivative beneficiary?
Among the most common visas that provide for the possibility of adding an immigration derivative are the following:
- Family-based visas.
- Employment-based visas.
- Diversity-based visas.
At this point it is worth clarifying that not all visas allow derivative immigration beneficiaries and that for a derivative beneficiary to be accepted into the United States he or she must meet the eligibility criteria.
Benefits for derivatives in the United States
The benefits that a person who has been designated as an immigration derivative in an application for a visa and/or immigration status, such as permanent residence, can access are significant, and mark a before and after in their immigration status.
These benefits include the possibility of obtaining a permanent residency card, residing and working legally in the United States, access to social and educational opportunities, creating new ties with the community, building a better future in the United States, among others. Below, we will detail the benefits of being an immigration derivative in the United States.
Adjustment of Status
Adjustment of Status is one of the benefits that immigration derivative beneficiaries can access. This benefit allows them to apply for permanent residency in the United States in order to live and work legally in the country. However, it is essential that applicants and their derivatives have not committed significant violations prior to applying for this adjustment, and that they are considered eligible for the benefit.
This process is especially beneficial for families, as it allows derivatives, such as spouses and children, to apply for adjustment of status at the same time as the primary beneficiary. To apply for adjustment of status, an immigration derivative must file Form I-485, Application to Register Permanent Residence or Adjust Status, and specify that his or her status as a derivative.
Legal work
A person who is a derivative beneficiary of immigration and who, through this process, has obtained a nonimmigrant visa, may apply for Employment Authorization (EAD) in order to work legally in the United States.
This authorization is issued by the U.S. Citizenship and Immigration Services (USCIS) and allows immigration derivatives to actively contribute to the economic development of their families, as well as gain work experience. In turn, being able to work legally can facilitate a person’s access to certain social and employment benefits.
Employment authorization is requested through Form I-765, Application for Employment Authorization, and the submission of any additional documents that may be required. For more information on this topic, please visit our article on Frequently Asked Questions about Work Permits.
Social
Social benefits for U.S. immigration derivatives are a crucial aspect that can significantly improve the quality of life for families reuniting in the United States. Not only do they provide essential assistance, but they also allow people to create strong ties with the community.
These benefits include access to health, education and assistance programs, which are essential for well-being and social integration. For example, children of immigrants who obtain permanent resident status are entitled to access education, which facilitates their academic and social development.
These benefits not only provide short-term life support, but also contribute to the long-term growth, integration, and prosperity of people arriving in the United States.
How can I add a derivative to my immigration case?
Generally, a principal beneficiary applying for any of the visas or immigration statuses that allow the addition of derivative beneficiaries will have the option to add them at the time of completing their initial application, i.e., jointly. This will depend on the type of visa or status requested.
On some occasions, however, it will be necessary for a procedure to be carried out after a principal beneficiary has obtained a benefit. This process will also depend on the visa or status in question, and we recommend that you see the section of that particular application or consult with an experienced attorney for more details on your particular case.
However, if an individual needs to request USCIS to notify a U.S. Consulate through the NVC about the adjustment of his or her permanent resident immigration status, he or she may do so by filing a Form I-834 Request for Action on an Approved Application or Petition. This permit will allow your spouse or child to apply for an immigrant visa to rejoin you in the United States.
What are the responsibilities of an immigration derivative?
After obtaining the benefit in the United States under the immigration derivative status, the individual will acquire responsibilities that include, but are not limited to, maintaining lawful status in the United States, complying with immigration laws and regulations, and attending interviews or biometric appointments required by USCIS.
In turn, it will become necessary for the immigration derivative to report any change in their address of residence to USCIS within 10 days of the change, as required by law, to ensure that they do not commit any act that may jeopardize their immigration status, and to maintain good moral character.
How can an experienced attorney help you add derivative beneficiaries to your immigration case?
An experienced immigration attorney can be a key person in the process of adding a derivative beneficiary to your immigration case, as he or she has the experience and in-depth knowledge of U.S. immigration law that is required to complete each process correctly.
At Jaskot Law we believe that having the support of an experienced attorney can help you bring your family to the United States and provide personalized advice for your particular case, outlining all the options available to you. Contact our team today so that we can provide you with effective solutions and significantly increase the likelihood of success in including derivative beneficiaries in your immigration case.
Frequently Asked Questions
Who can be considered a derivative beneficiary in an immigration case?
A derivative beneficiary in an immigration case generally includes the spouse and unmarried children under the age of 21 of the primary beneficiary. This status allows immediate family members of the principal beneficiary to obtain the same immigration benefits, such as employment visas, family visas and refugee or asylee status.
What social benefits can immigration derivatives receive in the United States?
Immigration derivatives in the United States can access various social benefits, including health, education and assistance programs, which are essential for their integration and well-being. These benefits facilitate access to medical services, school enrollment and participation in social and community assistance programs.
How can an immigration attorney help in the process of including a derivative beneficiary?
An immigration attorney can guide you through every step of the process to include a derivative beneficiary, ensuring that all legal requirements are met, and all necessary documents are properly submitted. In addition, the attorney can provide personalized advice and strategies to increase the likelihood of success in your immigration case.
Ana Aguirre Santos is an advanced student of the National Sworn Translator’s Degree in English at the National University of Córdoba (Argentina) where she specializes in legal and commercial translation. She has worked as a translator and copywriter for several websites, creating relevant and reliable content for a variety of users.
