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March 3, 2008: Can She Qualify As A Derivative, Or Must She File Through Her Own Sponsor?

Can She Qualify As A Derivative, Or Must She File Through Her Own Sponsor?

My husband is filing an adjustment of status application. Currently, he is in H1B visa status. I am in H1B visa status too, but I cannot file my green card application right now. Can my husband file my derivative green card application along with his green card application even though I am not on an H-4 derivative visa but on my own H1b visa? Or would I have to file my green card separately using my H1B employer?
— Anonymous

This is an unusual question, and I certainly can understand why you may have raised this issue.

Since you are not a derivative of your husband’s H1B petition, you are asking if this will affect his ability to file for your residency as his derivative. I believe there is nothing in the law that would prohibit you from obtaining permanent residency status as a derivative of your husband’s permanent petition, even though you are now enjoying independent H-1B visa status. Furthermore, I would suggest that you seriously look into filing a labor certification based on your job. In the event that your husband’s situation falls through, you could then rely upon your own labor certification to get you your residency, and your husband could be the derivative. There is nothing prohibiting both you and your husband having labor certifications filed for each of you. When the time comes file for adjustment of status, you will then have the choice of using his or yours. This could be significant if one of the companies run into financial difficulties and cannot continue with its sponsorship.

These are complicated employment-based immigration issues. I hope you will retain the services of a skilled immigration law firm to represent you and your husband before doing anything on your own.

Michael Shane and Evan Shane, Immigration Attorneys

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