What is a Derivative Applicant?
Posted by Frank Gogol
You may be looking forward to obtaining your green card soon, but before you get it, you need to know whether you are a principal applicant or a derivative applicant. When submitting your documents, Form I-485 will ask you about this matter. So, what is a derivative applicant and how do you know if you are one? You will learn everything about it in this article.
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Principal Application vs. Derivative Applicant
Principal applicants and derivative applicants are completely different. In order to be able to apply for a green card successfully, you must make the difference between the two categories so you know which one you’re part of. That being said, here is what each of these things means:
What Is a Principal Applicant?
A principal applicant is the main or primary intending immigrant whose name is written on the immigrant petition. So, if you are adjusting your status and you are the only member in your family doing this, you are the principal applicant. It is the most common status that people who apply for a green card have. They have to state whether they are a principal immigrant or not in the 2nd part of Form I-485.
A petition for an immigrant is a form from the government that requires recognition as an individual who is eligible to receive permanent residency. Sponsors who are employment-based use Form I-140, while family-based immigrants will use Form I-130. It is also possible for a Form I-129F to be applied by a U.S. citizen when he/she has a foreign fiancé. The principal applicant is the person who is listed as the beneficiary on the immigrant petition.
What Is a Derivative Applicant?
A derivative applicant is different compared to a principal applicant. Derivative applicants are people who can use the principal applicant in order to be able to adjust their status. So, they cannot be petitioned for directly. This means that the applicant is either a spouse or an unmarried child of the principal beneficiary. As such, the derivative beneficiary can have similar or the same benefits for immigration as the principal applicant does. If their names are listed on the same petition as the principal applicant, they will be considered a derivative applicant.
But this may become a little difficult to understand when it comes to comparing them to immediate relatives.
Immediate relatives refer to unmarried children, parents, and spouses of U.S. citizens. In this case, each one of them needs to complete his/her own I-130 form, and will also be a Form I-485 principal applicant. It’s a completely different thing.
It is also important to know that there are two different types of derivative immigration categories, respectively immigrant derivative benefits, and nonimmigrant derivative benefits.
Nonimmigrant visas are offered to people who want to come to the U.S., but only temporarily. Some of these visas are H1B and B1/B2. Sometimes, children and spouses of the nonimmigrant will be able to get a nonimmigrant visa as well, which is a derivative benefit.
Some nonimmigrant derivative visas can give the holder the ability to get an Employment Authorization Document. While in the U.S., they will also be able to work and provide for the family, which is a great benefit. However, there are some types of nonimmigrant visas that do not bring any derivative benefits, and B1/B2 visas are such an example.
Nonimmigrant visas are valid only as long as the visa of the principal applicant is still in place. This means that if the H1B visa holder gets fired and cannot find another employer, for instance, the person will not be of status anymore.
Then, there are immigrant residence derivative benefits, which are part of the same concept. The spouse or child of an immigrant will be able to get some immigration-related benefits as derivative applicants. But things are a bit different in this regard, as it all depends on whether the immigrants are preference relatives or immediate relatives, as well as when the main beneficiary applies for permanent residency.
What’s the Difference?
The main difference between the two categories is the fact that principal applicants are the main beneficiaries listed on Form I-485. On the other hand, derivative applicants are not the main beneficiary, but they are listed on the same petition as the principal applicant.
Examples of Principal and Derivative Applicants
If you still want to understand more about principal and derivative applicants to figure out which category you’re part of, here are two examples:
Julia is a Mexican citizen, and so is her 13-year old son Flavio and 15-year old daughter Maria. She found a partner from the U.S. who has U.S. citizenship, and they got married not too long ago. So, the husband files an I-130 petition for his now-wife, and then two separate petitions for his stepchildren. Therefore, all three of them will be principal applicants because they all need their own, separate petitions.
Michael is a French citizen and he has a child of 13 years of age and a wife. He has a sister who lives in the U.S. and has citizenship. The sibling filed Form I-130 for Michael so he could get a green card and become a permanent resident. But because Michael is married and has a child, they were also listed on the petition as family members. Once Michael is able to file Form I-485 for status adjustment, he will be the principal applicant, and thus his wife and child will be the derivative applicants because they gain residency through the principal applicant.
Evidence to File with Form I-485
In order to prove which category you’re part of, you may have to submit some proof that you’re a derivative applicant or a principal one. Usually, this doesn’t apply to applicants who file with Form I-130 together with Form I-485, so they can proceed without bringing any proof of the category.
But when it comes to principal applicants who have a pending or approved immigration petition, an approval notice or a receipt should be submitted as well. Form I-797C, Notice of Action could be a great document to submit for this.
Derivative applicants may only need to adjust their status when USCIS approves the immigration petition of the applicant, but there are situations when exceptions are made. There will be an underlying petition where the principal applicant is listed. The derivative applicant will be able to get this petition and then will have to submit Form I-485 with the approval notice.
Being a derivative applicant is different from being a principal applicant, so if you intend to go to the U.S. and become a resident or stay there for a temporary period, you should know your category. Derivative applicants are the applicants listed on the same document as the principal applicant, and they gain benefits through the main beneficiary of the visa. Make sure that you remember all these details in case you plan on going to the U.S. soon.