What Family Members Need to Prove to Get Derivative U Status and Later a Green Card

Eligibility criteria for derivative status as the family member of a U-visa holding crime victim, and when this can lead to permanent residence in the United States.

By , Attorney · Temple University Beasley School of Law

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 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 actual crime victim who applies for U status is known as the "principal applicant" and (if approved) will be granted U-1 status allowing them to live and work in the U.S. for a specified period of time not longer than four years. A principal applicant, can petition for derivative U status for certain family members by submitting Form I-918A, Petition for Qualifying Family Member of U Visa Recipient, either at the time of their application or after receiving approval.

Which relatives qualify for derivative U status will depend on the principal applicant's age and, in some instances, the family member's age and marital status. A principal applicant who is over 21 years old can include these family members in the application:

  • spouse (U-2 visa category) and
  • unmarried children under age 21 (U-3).

If the principal applicant is under 21, the following relatives qualify for derivative U status:

  • 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 parents or siblings. Derivative U-4 parents and U-5 siblings will not lose eligibility if the principal applicant turns 21 before their derivative visas are issued. In addition, U-5 siblings who reach their 18th birthday before their applications are decided upon maintain eligibility as long as they do not marry before entering the United States.

USCIS also issued a rule in 2014 that prevents 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 to the U.S. 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) or 8 U.S.C. 1182 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 a summary of the grounds of inadmissibility, for example, criminal convictions, health concerns, and immigration violations, please see Inadmissibility: When the U.S. Can Keep You Out.

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 apply for a visa and attend an interview at the nearest U.S. embassy or consulate before being issued a U visa enabling 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 U.S. consulates all have different operating procedures, contact the one serving your area to make sure that you have prepared all the necessary evidence when you attend your visa interview to avoid delays in processing your U visa.

Derivative Family Members Must Apply for U.S. Work Authorization Separately

The principal applicant will, upon approval, automatically be issued an employment authorization document (also known as an "EAD" or a work permit). 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 the application gets denied? Unfortunately, family members no longer qualify to be derivative beneficiaries of that petition; BUT they might qualify as an "indirect victim" of the qualifying crime. For example, they could potentially 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.

When Family Members of U Visa Holders Can Qualify for U.S. Permanent Residence (Green Cards)

Certain family members of principal U nonimmigrant status (U-1 visa) holders, who are living either in the U.S or abroad, might be eligible to apply for green cards when the principal applicant does so—even if they were left out of the original application for U status or the relationship arose after it was granted. The technical term for this is that they adjust their status to lawful permanent resident (LPR). Below, we'll summarize the eligibility requirements.

How a U-1 Visa Holder Would Petition for a Relative to Receive U.S. Permanent Residence

The paperwork part of the process must be started by the U visa holder, who would need to submit Form I-929 Petition for Family Member of U-1 Nonimmigrant to USCIS on behalf of the qualifying family member, together with supporting evidence and the filing fee ($230 as of late 2023) or a fee waiver application.

If the I-929 is approved, the immigrating family member will then fill out Form I-485, Application to Register Permanent Residence or Adjust Status to U.S. Citizenship and Immigration Services (USCIS). Filing an I-929 is more difficult than simply filing for a relative as a lawful permanent resident. However, there are advantages: you can bypass potentially longer wait times for available visas and your family member can likely obtain a green card despite being considered inadmissible to the United States.

Eligibility Requirements for a Family Member of a U Visa Holder to Obtain a Green Card

There are five requirements that must be met before someone with U-1 status (we'll assume that's you) can petition for a green card on behalf of a family member:

  1. You must be a U-1 nonimmigrant, meaning you were the principal applicant on a U visa application.
  2. In terms of timing, you must have already obtained your U-status-based green card or have a pending adjustment of status (AOS) application (awaiting action by USCIS).
  3. The family member must qualify based on a relationship to you (either being your spouse and unmarried children under 21 years of age if you yourself are over 21 or, if you are under 21, your spouse, unmarried children under 21 years of age, and your parents). This can include a spouse whom you married while in U status but before applying for adjustment of status.
  4. You must establish that you or your noncitizen relative will suffer extreme hardship if that person is not allowed to stay in or enter the U.S. to join you.
  5. You must demonstrate that the family member deserves a favorable exercise of discretion in receiving U.S. permanent residence.

More About the Extreme Hardship Requirement

USCIS evaluates extreme hardship on a case-by-case basis, considering the particular facts and circumstances. If the qualifying family member for whom you are applying is in the United States, you will have to demonstrate that their removal will result in a degree of hardship to you or to the person beyond that typically associated with family separation or having to leave the country.

USCIS takes into account the fact that you are applying as a crime survivor in assessing hardship to you and your family member. They will consider how you and your family member will be affected if you remain in the U.S. without your relative, as well as how your lives would be affected if you left the U.S. to join your relative in the event they are removed from this country or not allowed to enter the United States.

Some factors the agency will take into account include but are not limited to:

  1. the nature and extent of the physical or mental abuse you suffered as a result of having been a victim of criminal activity
  2. any risk you have of being harmed by the perpetrator if you have to return to your home country
  3. any loss of access to mental health or medical services for victims if you return to your home country, among others
  4. the impact of losing access to the United States' justice system (including criminal courts, family courts for custody proceedings, and law enforcement authorities), and
  5. specifically in the context of a domestic violence case, whether the home country has laws and social practices that could punish you or your family members because they have been victims of domestic violence or have taken steps to leave an abusive household.

Furthermore, USCIS will consider any other relevant factors, so it's helpful to also include information about extreme hardship to your relative. Evidence of how long your family member has lived in the United States, medical issues they have, treatment they receive in this country but might not have access to abroad, or fears they have of remaining in or returning to the home own country, are all examples of what might be viewed as relevant.

More About the Discretionary Requirement

USCIS can ultimately decide whether or not your relative deserves to have this petition granted. It will review your family member's file to determine whether there are any negative issues USCIS needs to take into account before granting the petition. In the absence of negative immigration or criminal history, USCIS will likely exercise discretion favorably. However, you should still specifically request that USCIS exercise discretion favorably. The best way to do that is with a signed statement by the family member plus documentary evidence.

If the family member has adverse factors in their background (including inadmissibility issues though these aren't an automatic legal barrier), be sure to present evidence of positive equities to offset these.

Depending on how serious the adverse factors are, USCIS might want to see evidence that denying the family member status would result in "exceptional and extremely unusual hardship" (as opposed to mere "extreme hardship"). If your family member has a serious criminal history; for example, has been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, multiple drug-related crimes; or is the subject of security or terrorism related concerns, USCIS is unlikely to exercise discretion in the person's favor.

An Experienced Immigration Attorney Can Help

Helping a family member derivative of a U visa application obtain residence can be a complex process. This is especially true if the family member is considered inadmissible or has a criminal record or other adverse factors. An experienced immigration attorney can help evaluate eligibility and prepare the necessary application materials and legal arguments.

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