When I apply for lawful permanent resident status, what family members may be considered “qualifying family members” to also become lawful permanent residents?
If you have U visa status as a principal applicant, and have submitted an application to become a lawful permanent resident (after at least 3 years of U visa status), you may be eligible to ask that your “qualifying family members” receive lawful permanent residence as well.* Qualifying family members include your spouse, child, and parent (if you are a child) who were never derivatives, and all of the following requirements must be met:
- You have U visa status as a principal applicant (U-1);
- Your application for lawful permanent residence was approved, is still pending, or is filed at the same time as the application for your qualifying family member;
- Your qualifying family member never received U visa status as a derivative;
- The relationship with your qualifying family member existed when you received lawful permanent residence and it continues to exist at the time your qualifying family member receives lawful permanent residence; and
- You or your qualifying family member would suffer extreme hardship (see below) if your qualifying family member is not allowed to stay in, or enter, the U.S.**
Extreme hardship is evaluated on a case-by-case basis, taking into account the particular facts and circumstances of each case. Some factors that may be considered include, but are not limited to:
- The type and degree of the physical or mental abuse suffered as a result of being a victim of crime;
- The effect of losing access to the U.S. courts and criminal justice system;
- The probability that the criminal's family, friends, or others acting on behalf of the criminal in the home country would harm the applicant or the applicant's children;
- The need for social, medical, mental health, or other supportive services for victims of crime that are not available or accessible in the home country;
- In domestic violence cases, whether there are laws and social practices in the home country that punish the applicant or the applicant's children because they have been victims of domestic violence or have taken steps to leave an abusive home;
- The criminal's ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant or the applicant's children;
- The applicant’s age, both at the time of entry into the U.S. and at the time the applicant applies for lawful permanent residence; and
- Evidence, including a signed statement from the qualifying family member and other supporting documentation that explains that discretion should be exercised in his/her favor.***
* INA § 245(m)(3)
** INA § 245(m)(3), 8 CFR § 245.24(g)
*** 8 CFR § 245.24(h)(1)
What family members may be considered derivatives?
If you are granted U visa status as a principal applicant (U-1), some of your family members may also qualify for U visa status as derivatives.* A “principal applicant” is the person who applies for an immigration benefit, such as U visa status. A “derivative” is another person (usually a family member) who may also receive lawful status through the principal applicant’s status.*1 As a principal applicant, you can file a petition on behalf of your derivative family members at the time you apply for U visa status or later.*2
If you are 21 years or older, then the following family members may qualify for U visa status as derivatives:
- Spouse (U-2); and/or
- Unmarried children under 21 (U-3).*
If you are under 21 years old, then the following family members may qualify for U visa status as derivatives:
- Spouse (U-2);
- Unmarried children under 21 (U-3);
- Parents (U-4); and/or
- Unmarried siblings under 18 (U-5).*
Note: The ages of the principal applicant and the derivative family members are determined at the time you (as the principal applicant) file the U visa status application.*3
As a principal applicant, you will have to prove that your family members meet one of the particular family relationship requirements described above and that they are not inadmissible or that they qualify for a waiver (exception). They do not need to prove that they meet the other eligibility requirements that principal applicants need to prove.*4
Please note that if your family member was the person who committed the crime against you, then s/he will not be eligible to obtain U visa status as a derivative.*4
* INA § 101(a)(15)(U)(ii)
*1 USCIS website – Glossary
*2 8 CFR § 214.14(f)(2)
*3 8 CFR § 214.14(f)(4)
*4 8 CFR § 214.14(f)(1)
How can my family member(s) benefit from my U visa status?
If you are eligible for U visa status, there are a number of ways in which your family members may also be able to obtain lawful status for themselves:
- They may be able to receive U visa status as derivatives by proving they meet a specific relationship requirement with you.* To read more about this, please see What family members may be considered derivatives?
- They may be eligible to obtain U visa status if they are considered indirect victims of the crime, by proving they meet the U visa status eligibility requirements.** To read more about this, please see Who can be considered a “victim of crime” to be eligible for U visa status?; or
- Later on, once you apply for lawful permanent residence status, your family member(s) may be eligible to obtain lawful permanent residence (not U visa status) if they are considered to be "qualifying family members." A qualifying family member is someone who:
- was never a derivative; (if your family member was included in your U visa application as a derivative, s/he would file his/her own petition for lawful permanent residence - you don’t apply for lawful permanent residence status for that person);
- can prove a specific relationship requirement with you at the time you are applying for lawful permanent residence; and
- can show that receiving lawful permanent status is necessary to avoid extreme hardship.*** To read more about this, please see What family members may be considered "qualifying family members?"
Note: Here you can see our series of vlogs (videos) in Spanish, with English subtitles, where we discuss what other people you can include on your U visa petition as derivative family members, among other topics.
* INA § 101(a)(15)(U)(ii)
** 8 CFR § 214.14(a)(i)
*** 8 CFR § 245.24(g)