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Options in obtaining a green card for family members who never received Derivative U-Visa Status?

By February 8, 2022Immigration
An individual holding a paper cut out of a family

Although family members of U-Visa Beneficiaries who never received U-Visa Derivative Status are barred from obtaining a green card as Derivative Beneficiaries once the Principal U-Visa Beneficiary obtains a green card, there is still another option to consider to obtain a green card for those family members.  A spouse, child or parent of a child under 21 years of age of a U-Visa Beneficiary can still receive a green card if the following criteria are met:

  • The U-Visa Beneficiary must file and obtain approval of Form I-929, Petition for a Qualifying Family Member of a U-1 Nonimmigrant.
  • The family member must not be inadmissible under section 212(a)(3)(E) of the Immigration and Nationality Act which are acts related to involvement in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing.
  • The family member merits a favorable exercise of discretion.

Note that the family relationship must exist through the filing of the Form I-485 and final decision of the Form I-485.

To merit a favorable exercise of discretion, the family member must demonstrate to the immigration service that the green card is deserved. Essentially the less criminal history and more equities such as long-time residence in the United States, positive work history and having close family that are U.S. Citizens or Legal Permanent Residents, increases the chances that an adjudicator will find that approval of the green card justified and that the case merits a favorable exercise of discretion.

If in the case, there are negative factors, then the plan is to highlight the positive equities to attempt to have the positive equities outweigh or outshine the negative as much as possible. Note that even though U Visa status serves to waive or forgive many crimes that would typically disqualify a beneficiary from the green card, cases with significant criminal history need great care to work on addressing the past criminal history in a manner that will convince the adjudicating officer that the beneficiary deserves the green card and that such re-offense will not happen again.

What to submit to the Immigration Service?

Form I-929:

  • Evidence that the Principal Beneficiary has an approved or pending Form I-485;
  • Evidence that the relationship with the Principal Beneficiary continues to exist;
  • Evidence of Extreme hardship potentially caused to the Principal Beneficiary or the family member if the family member is not allowed to remain or enter the United States. You can review our discussion on extreme hardship here;
  • Recently taken photograph of the family member.

Form I-485:

  • Form I-485, Application to Register Permanent Residence or Adjust Status with the required filing fee;
  • Copy of Form I-797, Approval Notice, but showing approval of the Form I-929;
  • Evidence that the Principal Beneficiary who filed the Form I-929 on your behalf has an approved or pending Form I-485;
  • Evidence that the relationship with the Principal Beneficiary continues to exist;
  • Two passport-style photographs;
  • Copy of your government-issued identity document with photograph;
  • Copy of your birth certificate;
  • Form I-693, Report of Medical Examination and Vaccination Record;
  • Certified police and court records of criminal charges, arrests, or convictions.

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