Last updated: October 2026. Checked against the USCIS Policy Manual (Volume 7, Part A, Chapters 6 and 7), the USCIS fee schedule (Form G-1055, edition 10/07/26), 9 FAM 502.1 and the October 2026 Visa Bulletin.
Your EB2 NIW spouse and your unmarried children under 21 can get green cards through your case as derivative beneficiaries. They do not need their own I-140 or their own national interest waiver. USCIS says that if your I-140 is approved, your spouse and unmarried children under 21 “may be eligible to apply for admission” as EB-2 derivatives. Family members in the United States usually file their own Form I-485, either with yours, while yours is pending, or after it is approved. Family members abroad apply for immigrant visas through the State Department using Form DS-260. Each derivative files and pays separately, and none of them can receive a green card before you do.
Children’s ages need the most care. To stay a derivative, a child must be unmarried and under 21, or under 21 using the Child Status Protection Act (CSPA) formula. This guide covers who qualifies, how each family member applies, CSPA basics, and dependents’ work and travel documents with current USCIS fees. For CSPA edge cases, read the official pages linked below and speak with a licensed immigration attorney.
Key takeaways
- Derivatives are your spouse and your unmarried children under 21. They receive your priority date and classification.
- The marriage must exist when you become a permanent resident. When the I-140 was filed or approved does not matter.
- Derivatives in the U.S. file their own I-485. Those abroad file a DS-260 and each pay the $345 immigrant visa fee plus the $235 USCIS Immigrant Fee.
- For I-485s filed on or after August 15, 2025, USCIS uses the Final Action Dates chart to fix a child’s CSPA age. That is true even if the family filed early under the Dates for Filing chart.
- A derivative with a pending I-485 can apply for a work permit under category (c)(9) and for advance parole on Form I-131.
Who qualifies as an EB2 NIW spouse or child derivative
The USCIS Policy Manual (Volume 7, Part A, Chapter 6) explains that, “in order to prevent the separation of families, the spouse or children of a preference immigrant can accompany or follow to join the principal beneficiary.” Because they have no separate basis to immigrate, “they derive their status from the principal.”
A derivative spouse qualifies if three things are true:
- The marriage existed when you adjusted status or were admitted as a lawful permanent resident.
- The marriage still exists when the spouse adjusts status.
- You are still a permanent resident at that point.
A derivative child must have been acquired before you became a permanent resident and must still be a child, meaning “unmarried and under 21 years old,” or must qualify under CSPA. A child born after you become a permanent resident can still be a derivative if the child is “born of a marriage that existed at the time of the principal’s LPR admission or adjustment.” Separate rules cover adopted children who had not yet met the two-year custody and residence requirements when you immigrated.
| Family member | Derivative? | Key condition |
|---|---|---|
| Spouse married before your I-140 was filed | Yes | Marriage still exists when the spouse adjusts |
| Spouse married after I-140 approval but before your green card | Yes | The test is the date you adjust or are admitted, not the I-140 date |
| Spouse married after you became a permanent resident | No | Not “derivatively entitled” (9 FAM 502.1-1(C)(2)). A family-based petition is the usual route |
| Unmarried child under 21 | Yes | Must remain unmarried and under 21 (actual or CSPA age) |
| Child born after your green card | Yes, in some cases | Born of a marriage that existed when you became a permanent resident |
| Married son or daughter | No | CSPA “does not change the requirement” to be unmarried |
| Son or daughter whose CSPA age is 21 or older | No | Needs a separate path (see the CSPA section below) |
Derivatives do not have to meet the EB-2 or Dhanasar standards, but each must qualify individually. USCIS’s employment-based green card page lists the adjustment requirements, including lawful admission or parole, an available visa and admissibility.
How EB2 NIW dependents apply: Form I-485 or DS-260
In the United States: Form I-485
USCIS lets a derivative file Form I-485 at any of these points:
- Together with your I-485;
- While your I-485 is still pending; or
- After you become a permanent resident, as long as you still hold that status and the person was your spouse or child when you got it.
In the first two cases, your I-485 must ultimately be approved. The Policy Manual states that “USCIS cannot approve the Form I-485 for a derivative applicant until the principal applicant has been granted lawful permanent resident status.” The derivative’s packet includes proof of the relationship (marriage certificate, birth certificate or adoption decree), a copy of your I-140 notice unless filing together, identity and status documents, and Form I-693 when required. For how the principal’s filing works, including concurrent filing, see our EB-2 NIW application process guide.
Outside the United States: DS-260 through the NVC
Family members abroad go through consular processing. Under 9 FAM 502.1-1(C)(2), a derivative counts as “accompanying” if they get an immigrant visa within six months of your visa issuance or your adjustment, and “an ‘accompanying’ relative may not precede the principal applicant to the United States.” Derivatives who follow later face “no statutory period” to apply, but the relationship and your status must continue, and they must immigrate before you naturalize.
If you adjust status in the U.S. and your family is abroad, you file Form I-824. This asks USCIS to notify the National Visa Center that you have adjusted, so your spouse and children can apply to follow to join you. You don’t use the I-824 if you immigrated on an immigrant visa yourself. In that case the I-824 instructions direct you to the NVC.
| Family situation | Route for dependents | Main forms |
|---|---|---|
| You and your family are all in the U.S. | Each person files their own I-485 | I-485 for each person, plus optional I-765 and I-131 |
| You adjust in the U.S.; family is abroad | Follow to join through a consulate | I-824 (you), then DS-260 for each family member |
| Whole family is abroad | Consular processing together | DS-260 for each person |
Timing: priority dates, the Visa Bulletin and cross-chargeability
Derivatives use your priority date and EB-2 classification. A visa must be available when they file and again when the case is decided. In the October 2026 Visa Bulletin, the EB-2 Final Action Dates are 01JAN25 for Rest of World, 01OCT21 for China and 01NOV13 for India. For October 2026, USCIS’s filing charts page says employment-based applicants “must use the Dates for Filing chart.” The Rest of World EB-2 Dates for Filing cutoff is 15MAR26. For how these dates move, see our priority date guide.
Cross-chargeability for families born in different countries
Under the Policy Manual, “the principal applicant may cross-charge to the derivative spouse’s country, and the derivative spouse may cross-charge to the principal’s country.” Children may cross-charge to either parent’s country, but “parents may not cross-charge to a child’s country.” Both spouses must be eligible to adjust. When the principal uses the spouse’s country, the officer “should approve both adjustment applications at the same time.” This can matter a lot for an India-born or China-born principal married to someone born in a Rest of World country. Confirm the details with an attorney before relying on it. Our guide on EB-2 NIW for Indian applicants covers the backlog background.
Planning an NIW with family? Our free EB-2 NIW profile evaluation checks the petition every derivative depends on: yours.
EB2 NIW children over 21: CSPA age-out basics
Policy Manual Volume 7, Part A, Chapter 7 lists “employment-based preference derivatives” among the people CSPA covers. CSPA does not change the definition of a child. It changes how age is calculated:
Age at time of visa availability − time the I-140 was pending = CSPA age
- Pending time runs from the date the I-140 was properly filed until it was approved. The Policy Manual notes that the priority date “should not be used” for this, because in employment cases it can differ from the receipt date.
- Visa availability is the later of the I-140 approval date and the first day of the Visa Bulletin month in which the Final Action Dates chart shows your priority date as current. For I-485s filed before August 15, 2025, the earlier February 2023 guidance applies.
- Sought to acquire: the child must seek permanent residence within one year of visa availability. Ways that count include properly filing an I-485, submitting Part I of the DS-260 and paying the immigrant visa fee. Talking to a lawyer does not count. The extraordinary-circumstances exception is narrow.
- Marriage: the child must stay unmarried.
The Dates for Filing trap. Filing under the Dates for Filing chart, which USCIS designated for October 2026, satisfies the sought-to-acquire requirement. It does not lock in the child’s age. The Policy Manual warns that a child who files this way “may ultimately not be considered a child” if the CSPA age is 21 or older on the date the Final Action Dates chart reaches your priority date. If a family files when the Final Action Dates chart is already current and the child’s CSPA age is under 21, that age is “locked in through final adjudication,” even if the dates later retrogress.
The following example is hypothetical, uses invented dates, and is not a prediction of Visa Bulletin movement.
| Step | Scenario A | Scenario B |
|---|---|---|
| Child’s date of birth | June 1, 2005 | June 1, 2005 |
| I-140 filed and approved | Feb 1, 2025 to Aug 1, 2025 (181 days) | Feb 1, 2025 to Aug 1, 2025 (181 days) |
| Final Action Dates chart reaches the priority date | Sept 1, 2026 (age 21 years, 3 months) | March 1, 2027 (age 21 years, 9 months) |
| CSPA age (minus about 6 months) | About 20 years, 9 months | About 21 years, 3 months |
| Result | Still a child if unmarried and sought to acquire within a year | Aged out as a derivative |
Multiple I-140s, retrogression before filing, missed one-year windows and consular cases (where a consular officer makes the final CSPA decision) need individual advice. Start with the USCIS CSPA page and 9 FAM 502.1-1(D), then speak with a licensed immigration attorney. If a child does age out, they need a separate path. For example, once you are a permanent resident, you can petition for an unmarried son or daughter of any age in the F2B category, which comes with its own wait.
EB2 NIW spouse work permit and travel documents
Work permit once the I-485 is pending
An approved I-140 does not by itself give your spouse permission to work. Once a derivative has a pending I-485, 8 CFR 274a.12(c)(9) allows them to apply for an Employment Authorization Document on Form I-765. Eligibility comes from the pending I-485, not from being a spouse. Under Policy Manual Volume 10, Part A, Chapter 4, (c)(9) EADs have a maximum validity of 18 months for both initial and renewal cards, under guidance effective December 5, 2025. USCIS also reports that DHS ended automatic EAD extensions for renewals filed on or after October 30, 2025 in certain categories, so file renewals early. USCIS encourages filing within 180 days of expiry.
H-4 spouses before the I-485
If you hold H-1B status, your H-4 spouse may be able to work before any I-485 is filed. USCIS’s H-4 EAD page lists eligibility where the H-1B worker “is the principal beneficiary of an approved Form I-140.” USCIS also warns that when the I-765 is filed together with an I-485, the category must be (c)(9), not (c)(26).
Travel while the I-485 is pending
USCIS states that, generally, “if you have a pending Form I-485 and you leave the United States without an advance parole document, you will have abandoned your application.” The regulation, 8 CFR 245.2(a)(4)(ii), carves out H-1 and L-1 workers and their H-4 and L-2 family members who keep their status and meet the stated conditions. Everyone else needs advance parole (Form I-131) first. The current G-1055 also lists a separate Immigration Parole Fee under Pub. L. 119-21. One of its listed exceptions covers a lawful adjustment applicant “returning to the United States after temporary travel abroad.” Check that page before you travel.
Fees per dependent
Sources: the USCIS G-1055 (edition 10/07/26), the State Department fee page and the USCIS Immigrant Fee page.
| Item (per person) | Fee |
|---|---|
| I-485, age 14 or older | $1,440 paper / $1,390 online |
| I-485, under 14 and filed with a parent’s I-485 | $950 paper / $900 online |
| I-765 (c)(9), where the I-485 was filed with a fee on or after April 1, 2024 and is still pending | $260 |
| I-765 standard filing (for example, an H-4 EAD) | $520 paper / $470 online |
| I-131 advance parole with a pending I-485 | $630 paper / $580 online |
| I-693 medical exam | $0 USCIS fee (the civil surgeon charges separately) |
| I-824 follow-to-join notification (filed by the principal) | $590 |
| DS-260 employment-based immigrant visa application | $345 |
| USCIS Immigrant Fee (consular immigrants) | $235 |
For the principal’s own fees, see our EB-2 NIW cost breakdown. Our post-approval guidance service helps families organize the derivative filings after the I-140 is approved.
Frequently Asked Questions
Does my spouse need a separate I-140 or NIW?
No. A derivative spouse applies based on your petition, through their own I-485 or DS-260, and does not have to meet the national interest test.
Can I add a spouse I marry after my I-140 is approved?
Yes, if you marry before you become a permanent resident. The Policy Manual looks at whether the marriage existed when you adjusted status or were admitted.
Can my spouse work while my NIW is pending?
Not on the basis of the I-140 alone. Your spouse can apply under (c)(9) once their I-485 is pending, or for an H-4 EAD if you are an H-1B worker with an approved I-140.
What happens if my child turns 21 before getting a green card?
Your child may still qualify if their CSPA age is under 21, they stay unmarried, and they sought to acquire permanent residence within one year of visa availability. If not, they need a separate path.
Every family member’s green card depends on the strength of your own petition. Start with a free profile evaluation, and check our EB-2 NIW processing time guide to plan the timing around your children’s ages.
Related guides
This article is general information, not legal advice. Skycap Consultancy is a petition-preparation consultancy, not a law firm. Requirements and fees change; check the linked USCIS pages before filing.
