Can My Spouse and Children Join Me in the US?

Immigrant Visas

Generally, the spouse and minor children of a person (the principal applicant) admitted to the US on a family-based, employment-based or diversity visa can receive derivative status. This means that they will not have to file for their own visas, and may be admitted to the US based on the principal applicant's approved visa.

The spouse and child must be eligible under US immigration laws and the child must be unmarried and under age 21. They must be "accompanying or following to join" the principal applicant to the US, which includes receiving their visas within six months of the issue date of the principal applicant's visa. They are not permitted to travel to the US before the principal applicant, but may follow him or her at a later date.

The principal applicant should request derivative status in his or her original visa application. He or she also should include evidence of the relationship with the derivative family members. The US consulate will examine this evidence during the in-person interview, which the derivatives also may be required to attend. The principal also can choose to wait until he or she is in the US and then request derivative status, but this can complicate the process, especially if the family members are still living overseas.

Spouses and minor children of immediate relatives of US citizens are not eligible for derivate status. Immediate relatives are the spouses, parents and children of US citizens. These persons will need to file for the appropriate class of visa before traveling to the US.

Nonimmigrant Visas

Many classes of nonimmigrant visas also have visas for accompanying spouses and minor children. For example, the spouse of an intracompany transferee can apply for an L-2 visa. Spouses and children receiving nonimmigrant visas are permitted to remain in the US as long as the principal visa holder. As with derivatives of immigrant visas, spouses and children of nonimmigrant visa holders may either accompany or follow to join the principal applicant in the US.

While spouses and minor children will receive the same class of visa as the principal applicant, they will not necessarily receive the same benefits under the visa. For example, the spouse of an H-1B worker is not entitled to seek employment without obtaining his or her own employment authorization.

Not all types of nonimmigrant visas have corresponding visas for spouses and children, including:

• Visitors for pleasure
• Transit visas
• Crewman
• International cultural exchange visitors

Spouses and children of these visa holders are required to apply for their own visas.

Asylees

Those receiving asylum protection in the US may file for derivate status for their spouses and minor children as well. If the eligible family members already are in the US, they can apply together with the same application. If the family members are not in the US, the principal applicant can file a petition for derivative status for his or her spouse and minor children. The petition must be filed within two years after the individual has received asylum in the US. The admissibility of the family members then will be determined by the US consulate.

For more information on filing for derivative status, contact a knowledgeable immigration attorney.

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