Understanding the Following-to-Join Rule (1)
A Spouse or Child applying for adjustment of status as a derivative applicant of principal’s I-485 application
I. Basic Overview of U.S. Immigration Categories
The U.S. Congress regulates immigration through a system of both limited and unlimited visa categories. Limited categories include family-sponsored, employment-based, and diversity immigrants, while unlimited visas apply to, such as, immediate relatives (spouses, children, and parents of U.S. citizens) 8 U.S. Code § 1151(a), (b).
As a result, spouses and children of lawful permanent residents (LPRs) are not considered immediate relatives under the Immigration and Nationality Act (INA) and are subject to immigrant visa availability. An LPR must file Form I-130, Petition for Alien Relative, for their spouse and child. After that, when an immigrant visa becomes available, the spouse and child can file Form I-485, Application to Register LPR status or Adjust Status, on their own behalf to adjust their statuses to LPR statuses, or apply at a U.S. Department of State (DOS) consulate abroad for immigrant visas.
However, in certain cases, a new I-130 petition is not required for a spouse or child of an LPR thanks to the following-to-join rule.
Here, we discuss a situationwhere an LPR has obtained the status by filing an I-485 application before, and the spouse or child, who did apply the application at the same time with the principal, stays in the U.S. in a valid nonimmigrant status and want to apply for LPR status.
II. The Following-to-Join Rule and Eligibility
The following-to-join rule roots in the INA:
"A spouse or child… shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa as [a family-sponsored, employment-based, or diversity immigrant], be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent."8 U.S. Code § 1153(d).
Simply put, a spouse or child,if does not independently qualify for an immigrant status and the availability of animmigrant visa, can receive the same immigration status and priority as principal through the accompanying or following-to-join.
For example, Amy’s employer filed an I-140 EB3 petition for her years ago. Later, Amy was married to her current spouse and had their child. However, when the immigrant visa became available, Amy’s spouse and child did not file I-485 applications as derivative applicants to adjust their statuses as Amy did, because Amy’s spouse had just finished a J-1 exchange program and was required to return to their home country for two years, along with the J-2 child.
Now, Amy’s spouse and child are no longer subject to the home-country physical presence requirement and want to meet her quickly. They choose to be admitted to U.S. in another nonimmigrant status, B2 Tourism visitor,and plan to apply for LPR statuses in the U.S. Neither of them independently qualifies for an immigrant status and the availability of an immigrant visa. Amy, an LPR now, does not need to file an I-130 for them, since they are in fact still derivative beneficiaries of the previously approved I-140 EB3 petition for Amy (principal beneficiary) under the following-to-join rule. Instead, they are also classified under EB3 and receive the same priority as Amy. When immigrant visas for EB3 category are still or become available, they can file I-485 applications as derivative applicants to adjust the statuses to LPR statuses.
However, not all spouses and children qualify as Amy’s spouse and child do. Immigration regulations further provide following conditions on whether a spouse or child is eligible for the same priority as principal. 22 C.F.R. § 42.53(c):
To be an eligible derivativeSpouse:
The principal must remain in LPR status when the spouse applies for adjustment;
The marriage must have existed before the principal obtains LPR status;and
The marriage must still exist whenspouse applies for adjustment.
To be an eligible derivative Child
The principal must remain in LPR status when the child applies for adjustment;
The parent-child relationship must have been established before the principal obtain LPR status. Exception: if a child is born after the principal becomes an LPR, the child may still qualify as a derivative if born of a marriage that existed at the time the principal obtains LPR status;
The child must remain unmarried;and
The child must remain under 21 (or qualify under the Child Status Protection Act, please see our website at the time of applying for adjustment.
Besides, an adopted child, if the two-year legal custody and joint residence requirements were not met when the principal immigrated, may later qualify to follow to join, provided that the child is still unmarried and under 21.
Moreover,while, under immigration regulations, "accompanying" means derivative applicants adjusting status within six months of the principal’s adjustment or visa issuance, "following to join" has no strict time limit and remains valid for their lifetime unless they pass away, or until principal applicant naturalizes as a citizen or give up the LPR status.
III. Conclusion
While usually a spouse or child of an LPR is required to have an approved I-130 petition for them before they can apply for adjustment of status, they may qualify as derivative beneficiaries of an approved immigration petition for the principal beneficiaries if eligible, and adjust their status to LPR without a separate I-130. Immigration laws provide several conditions for the eligibility of following-to-join, that is, the spouse or child does not otherwise qualify for anavailable immigrant visa, the relationship to the principal exists before principal becomes an LPR and still exists, and principal is still alive and remains an LPR.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
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(03/13/2025)