Many prospective EB-2 NIW applicants ask if their family can join them in case their I-140 gets approved. In this article we will review how family is dealt with in employment-based green card applications such as the National Interest Waiver.
We will review who may be included and who may not, and we will touch on important aspects of the law so you are well prepared to tackle your self petition.
Immediate Relatives: Who can you add to your EB2 NIW process?
When you receive approval for an employment-based green card category, such as EB1A or EB2 NIW, the good news is that your immediate relatives can also benefit from your permanent residency status. You are the principal beneficiary but your family may qualify as “derivate” applicants and obtain Lawful Permanent Residency status with you.
Defining “Immediate Family”
Immediate family members, in the context of green card applications, include:
- Spouse (husband or wife)
We will look into the definitions for spouse and children in a second, so you can understand who qualifies under them. But first, let’s take a look at who cannot acompany you on your green card journey…
Who’s Not Included: Family that can’t be added to your green card process
While the inclusion of immediate family is a positive aspect, it is crucial to understand who cannot be included in your EB1A or EB2 NIW application:
- Aunts and Uncles
- …and everyone else in the family
Unfortunately, these relatives cannot be part of your application, but they might still have the opportunity to apply for a visa or a green card on their own. This would be a totally independent application that they would have to research and apply for by themselves.
Spouse and Marriage Validity
For a spouse to be eligible for inclusion in your application, the marriage must be valid according to the laws of the place where it took place. This rule, called “place-of-celebration”, applies regardless of whether the marriage is traditional or a same-sex marriage, as long as it meets the criteria set forth by USCIS. So yes, same-sex or gay marriage is accepted by USCIS as long as it was legal or valid in the place it happened.
However, there are cases that USCIS does not recognize, such as:
- Polygamous marriages (marriage between more than two people)
- Civil unions or domestic partnerships.
- Proxy marriages where one party is not physically present during the union
- Marriages entered into solely for the purpose of evading U.S. immigration laws
- Other cases as discussed in USCIS Policy Manual
Definition of Children by USCIS
Children are another aspect of family inclusion that requires specific attention. To be considered a child by USCIS in the context of permanent residency:
- The individual must be under 21 years of age.
- The child must be unmarried.
- The child can be biological, adopted, or a stepchild.
This inclusive definition of children is good news for individuals who might be in various family situations. For those with sons or daughters older than 21, you can keep reading to see if the Child Status Protection Act offers some relief, or you can look at other options for them, such as student or work visas. And at some point, they may be able to apply for EB2 NIW as principal applicants!
Special Cases: Children of Previous Marriages
While your spouse is eligible to receive a green card as a derivative in your application, the children from their previous marriage can only be included if there is a legal stepchild relationship to you, the principal petitioner.
Child Status Protection Act (CSPA)
The Child Status Protection Act (CSPA) was established in 2002 to protect children who age out – meaning they turn 21 – while waiting for their case adjudication. The CSPA subtracts the time the application was pending from the child’s age to determine eligibility.
However, it’s important to note that the “pending time” is the time that USCIS took to process the I-140 petition. It is NOT the time it takes for a visa bulletin to turn current for the applicant. This will limit the number of people that can benefit from the CSPA rules, as many children age out simply waiting for a visa number to be available to them.
How to include your family in the green card process
We now understand who may be added as derivative in an application for permanent residency. Let’s see how to include relatives in your self-petitioned green card application in each of the two main steps:
Step 1: I-140 Petition
During the filing of your I-140 petition (the initial stage of the green card application), you, as the principal applicant, declare your intention to have your family members join you in the U.S in your I-140 form. This form is part of your petition package. Your family members don’t need to file anything themselves yet.
Step 2: Separate Applications for Adjustment of Status or Consular Processing
After your I-140 petition is approved, your family members will file their own separate applications:
- If you are in the U.S., each family member will file an adjustment of status application (Form I-485).
- If you are abroad, each family member will submit a DS-260 for consular processing.
These applications are independent but connected to the principal I-140 that has been approved. Each family member’s case will be evaluated individually during the process, but the family unit will attend the interview together.
Navigating the complexities of family inclusion in employment-based green card applications requires a clear understanding of USCIS definitions, regulations, and processes. While immediate family members can benefit from your permanent residency status, it’s important to be aware of the specific criteria and rules that apply. As you embark on this journey, consider seeking comprehensive resources and professional guidance to ensure a smooth process for you and your loved ones.