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March 17, 2008: Derivative Family Members On Employment Based Visas

Derivative Family Members On Employment Based Visas

My husband has a H-1B visa; I have an H-4. He is waiting on his green card filed for by his company. If and when it is approved, can he file for a green card for me or does he have to first be a citizen?
— Jan

Generally, spouses and unmarried children under the age of 21 of H-1B nonimmigrant visas enter the United States with a H-4 nonimmigrant visa. H-4 visa holders are admitted to the United States for the same length of time as the H-1B visa holder is admitted. Generally, H-1B visas are valid for an initial three year period and may be extended for an additional three years, for a total period of authorized stay of six years. The H-1B may be extended beyond the six year period if certain requirements are met.

As is the case in this situation, employers sometimes file a permanent petition for the H-1B employee. The employee is then eligible to file for lawful permanent residency once visa numbers become available. In your case, you will be considered a derivative beneficiary of the employer’s petition for your husband. You and your husband have the same priority date. In other words, you will be included on the employer’s petition for your husband as his spouse and you will be eligible to become a lawful permanent resident on the same day that your husband becomes eligible because you have the same priority date. There is no separate petition that is filed on your behalf by your husband or the employer. Your husband does not need to become a United States citizen before you are eligible for permanent residency. Rather, you just have to wait for the priority date to become current and visa number to become available, and then apply for permanent residency together with your husband.

If you have questions regarding how these types of petitions are processed and what supporting documents are necessary to prove your case, you should consult an experienced immigration attorney.

Evan Shane and Michael Shane, Immigration Attorneys

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