What Family Members Need to Prove to Get Derivative U Status
Who qualifies, and how to prove it within the application process.
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Nonimmigrant U visas are available for the victims of certain serious crimes who have helpful information to provide to law enforcement agencies. If you are granted U status, you will be given the opportunity to stay in the U.S. for up to four years and you may also be eligible for permanent residence (a “green card”) after three years of continuous presence in the United States.
For more information about who qualifies for a U visa as a principal applicant, see “U Visas for Crime Victims Assisting Law Enforcement: Who Is Eligible.” This article discusses how immediate family members can apply for derivative U status with U.S. Citizenship and Immigration Services (USCIS).
Which Family Members Qualify for Derivative U Status
The crime victim who applies for U status is known to USCIS as the “principal applicant” and – if approved – will be granted U-1 status allowing the person to live and work in the U.S. for a specified period of time not longer than four years. If you are a principal applicant, you can also petition for derivative U status for certain family members by submitting Form 918A, Petition for Qualifying Family Member of U Visa Recipient, either at the time of your application or after you receive approval.
Which relatives qualify for derivative U status will depend on your age – and in some instances, your family member’s age and marital status.
If the principal applicant is over 21 years old, he or she can include the following family members in the application:
- a spouse (U-2) and
- unmarried children under age 21 (U-3).
If the principal applicant is under 21, the following relatives qualify for derivative U status:
- a spouse (U-2)
- unmarried children under age 21 (U-3)
- parents (U-4), and
- unmarried siblings under age 18 (U-5).
In other words, principal applicants older than 21 cannot petition for derivative visas for their parents or siblings. Derivative U-4 parents and U-5 siblings will not lose their eligibility if the principal applicant turns 21 years old before their derivative visas are issued. In addition, U-5 siblings who reach their 18th birthday before their applications are decided upon maintain their eligibility as long as they do not marry before entering the United States.
USCIS also issued a rule in 2014 that will prevent U-3 derivative applicants from “aging out “if they turn 21 while their application for U status is pending.
Derivative Family Members Must Be Admissible or Apply for a Waiver
Derivative U visa applicants do not need to meet the U visa eligibility requirements that the principal applicant does – such as being the victim of a serious crime, suffering serious abuse, and possessing helpful information for law enforcement.
However, the grounds of inadmissibility listed at I.N.A. § 212(a) will apply to derivative applications for U status with the exception of the "public charge" ground
(in which immigrants can be denied entry if they will likely need to rely on need-based government assistance). For more on the grounds of inadmissibility, which can thwart your attempts to enter or receive status in the U.S. (for example, criminal convictions, health concerns, and immigration violations), please read Nolo’s article, “Inadmissibility: When the U.S. Can Keep You Out.”
If you think that you may be inadmissible, contact an experienced immigration attorney or an organization familiar with U visas to help you apply for a waiver of these grounds.
Consular Processing Applies to Derivative Relatives Who Reside Abroad
If your application for derivative U status is approved and you live outside the U.S., you will need to undergo additional processing in your home country. This means that you will need to apply for a visa and attend an interview at the nearest U.S. embassy or consulate before you are issued a U visa that will enable you to travel to the United States.
USCIS and the U.S. Department of State will not schedule this interview for you, so you will need to be proactive in applying for a visa and gathering the necessary evidence for the consular officers. Because the various consulates abroad all have different operating procedures, you should contact your local office to make sure that you have all the necessary evidence with you when you attend your interview to avoid delays in processing your U visa.
Derivative Family Members Must Apply for Work Authorization Separately
The principal applicant will be automatically issued an employment authorization document (also known as an “EAD” or a work permit) if his or her U visa application is approved. However, derivative family members must submit separate EAD applications if they wish to legally work in the United States.
To do this, they will need to file Form I-765, Application for Employment Authorization along with the application for derivative U status or, if applying after they have been approved for a U visa, with a copy of the U visa stamp in their passports or the USCIS approval notice.
Applying for U Status as an “Indirect Victim”
What happens to a family member’s derivative application if the principal applicant is unable to file for U status or if his or her application is denied? Unfortunately, if the principal applicant’s U petition is denied, family members no longer qualify to be derivative beneficiaries of that petition.
However, certain family members who would otherwise qualify for derivative status (see the list above) may have the option to apply for U status as an “indirect victim” of the qualifying crime. The family member may be eligible to apply for U status as a principal applicant if the direct victim is:
- dead due to murder or manslaughter, or
- incompetent or incapacitated (due to age or disability) and is unable to provide helpful information about the crime to assist law enforcement.
To learn more about filing an application for U status as the principal applicant, please see, “Filing an I-918 Petition for a U Visa.”