This article explains, in technical but accessible terms, how U.S. immigration law treats “derivative beneficiaries,” the protections available for children who approach age twenty-one, and the practical steps you should take to safeguard your family’s immigration pathway.

Statutory Framework

• Immigration and Nationality Act (INA) § 203(d) grants the same immigrant classification and priority date to a principal beneficiary’s spouse and unmarried children under twenty-one.

• Because an EB-2 NIW is filed on Form I-140, an approved petition automatically extends eligibility to these immediate relatives; they do not need to file their own I-140 petitions.

Who Qualifies as a Derivative Beneficiary?

Step-children and adopted children may also qualify if the marriage or adoption creating the relationship occurred before the child’s eighteenth birthday, as defined in INA § 101(b)(1).

Application Procedures for Derivatives

• Inside the United States: Each derivative files Form I-485 (Application to Register Permanent Residence or Adjust Status).

• Abroad: Each derivative completes Consular Processing after a visa number becomes available.

• Employment Authorization and Travel: While Form I-485 is pending, derivatives may apply for work permission (Form I-765) and advance parole (Form I-131), allowing lawful employment and international travel.

Visa Availability, Priority Dates, and Cross-Chargeability

• The Department of State Visa Bulletin controls when a visa number is available.

• Couples from different countries may shorten wait times through cross-chargeability, using the spouse’s country of chargeability when it has a more favorable cut-off date.

• File all I-485 packages together whenever feasible to minimize processing gaps if visa numbers retrogress.

The Aging-Out Problem and the Child Status Protection Act (CSPA)

A child who turns twenty-one before obtaining permanent residence ordinarily “ages out” and loses derivative status. The CSPA can preserve eligibility if:

1. Visa availability: The I-140 has been approved and a visa is available in the Visa Bulletin.

2. CSPA age calculation:

   CSPA age = chronological age on the visa-availability date minus the number of days the I-140 was pending.

3. Timely action: The child must “seek to acquire” residence (for example, file Form I-485) within one year of visa availability.

Because EB-2 is often current for many countries, the CSPA window can be narrow. Families should monitor the Visa Bulletin monthly and prepare documentation in advance.

Follow-to-Join Benefits

Even if a spouse or child cannot file at the same time as the principal, INA § 203(d) allows them to follow to join later without losing the original priority date, provided the qualifying relationship still exists. There is no statutory time limit for follow-to-join processing.

If a Child Still Ages Out

If CSPA protection does not apply:

• Once the principal becomes a lawful permanent resident (LPR), they may file a family-based petition:

  • F2A: unmarried child under twenty-one (typically current or short queues)

  • F2B: unmarried son or daughter twenty-one or older (longer backlogs)

• After the principal naturalizes, that child may shift into the immediate relative category, eliminating annual visa limits.

Filing Fees and Medical Requirements

Each derivative must pay the current Form I-485 fee and biometrics fee (if applicable) and submit a separate Form I-693 medical exam in a sealed envelope from a USCIS-designated civil surgeon. Fee amounts change periodically; confirm the latest figures on the USCIS Fee Schedule before filing.

Key Takeaways

• A spouse and unmarried children under twenty-one automatically derive EB-2 NIW benefits; no additional I-140 is required.

• The CSPA may protect children close to twenty-one, but only if they meet strict timing rules.

• Families should plan early, file complete applications together when possible, and track visa availability closely.

• Children who age out still have viable family-sponsored options once the principal becomes an LPR.

• Understanding follow-to-join, cross-chargeability, and ancillary benefits (EAD and advance parole) can streamline your family’s transition to permanent residence.

Disclaimer

This article is for general informational purposes only and does not constitute legal advice.