Adjustment of Status for Accompanying Derivative Beneficiaries
By Reuben S. Seguritan
July 08, 2015
Every fiscal year a limited number of immigrant visas are made available for each preference category. If the visa demand for a particular category is excessive and could not be satisfied by the number of visas allotted each year, the category is oversubscribed.
The current visa system places an annual cap of 140,000 visas for employment based categories, and 226,000 for family-based categories. No more than 7% of that number is allowed to be allocated to any one country. Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories.
The cut-off date indicated in the visa bulletin released by the Department of State each month is the priority date of the first visa applicant who could not be reached within the limit. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.
The cut-off date for a particular category may advance, remain unchanged or even retrogress depending on the visa demand.
Under immigration law, green card applicant under the family based preference categories and employment based categories can include their spouse and unmarried children under 21 as derivative beneficiaries. Family members of the green card applicant are counted towards the number of available visas for the principal’s preference category.
Family based preference petitions fall under four categories, namely, F1 (unmarried sons and daughters of U.S. citizens), F2A (spouses and minor children of lawful permanent residents (LPRs), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens).
Derivative beneficiaries can enter the U.S. as accompanying and following-to-join spouses and children. The accompanying derivative enters the U.S. with the principal beneficiary or within 6 months from the principal beneficiary’s entry into the U.S.
May a derivative beneficiary who is already in the U.S. adjust status if he entered the country before the principal beneficiary?
It has been a long standing decision of the Board of Immigration Appeals (BIA) that an accompanying and following-to-join derivative may not obtain permanent residence before the principal beneficiary. However, once the principal immigrant obtains permanent residence, the derivative beneficiary may adjust status even if he entered the U.S. before the principal immigrant as a nonimmigrant.
In one case, the wife of the principal applicant entered the U.S. on a nonimmigrant visa. After her husband was admitted for permanent residence years later, she applied for adjustment of status. The former INS denied her application on the ground that “an ‘accompanying’ relative may not precede the principal alien to the United States.”
The BIA clarified on appeal that the physical presence of the derivative in the U.S. as a nonimmigrant does not preclude her from adjusting status as an accompanying/following-to-join derivative.