Does a Dependent Spouse Inherit Principal Applicant’s Priority Date Automatically?

When it comes to U.S. immigration, many families rely on one person’s approved petition—often an I-140, which is the employment-based immigrant petition. The spouse and children of this main applicant are called “derivative beneficiaries.” A common question is whether a dependent spouse can use the principal applicant’s priority date if they later want to become a primary applicant themselves. Understanding how priority dates, I-140 petitions, and derivative status work is important for families planning their future in the United States 🇺🇸.

Who Qualifies as a Dependent Spouse and What Is a Priority Date?

A dependent spouse is the husband or wife of a principal applicant who has filed an immigrant petition, such as an I-140 for employment-based immigration. The dependent spouse is listed as a derivative beneficiary on the main petition. This means their eligibility for a green card depends on the approval and status of the principal applicant’s petition.

The priority date is the date when the main immigrant petition (like the I-140) or labor certification is properly filed with U.S. Citizenship and Immigration Services (USCIS). The priority date is very important because it decides your place in the visa line. The earlier your priority date, the sooner you can apply for a green card when a visa number becomes available.

Eligibility Criteria for Dependent Spouses and Priority Dates

Let’s break down the rules for dependent spouses and priority dates:

• Derivative Beneficiary Status: As long as the dependent spouse remains a derivative beneficiary on the principal applicant’s approved petition, their green card process is tied to the principal’s priority date. This means they can apply for a green card when the principal applicant’s priority date becomes current.
• No Automatic Inheritance: If the dependent spouse later wants to become a principal applicant (for example, by filing their own I-140), they do not automatically inherit the principal applicant’s priority date. Instead, their new petition will get a new priority date based on when it is filed.
• Exceptions Are Rare: There are very limited exceptions where a priority date can be kept or “retained.” These exceptions mostly apply when the same person files a new petition to replace an old one in certain employment-based categories (EB-1, EB-2, or EB-3). This does not apply to a derivative spouse who becomes a principal applicant by filing their own petition.
• Special Case—Death of Principal Applicant: If the principal applicant dies, the law (INA 204(l)) allows the dependent spouse and children to continue their green card process as long as they meet certain requirements. However, this does not give the spouse a new priority date as a principal applicant; it only lets them continue under the original petition’s priority date.

Examples to Make It Clear

• Example 1: Raj is the main applicant for an employment-based green card. His wife, Priya, is listed as a dependent spouse on his approved I-140. Raj’s priority date is January 1, 2022. Priya’s green card process is tied to Raj’s priority date as long as she remains a derivative beneficiary.
• Example 2: Priya later gets a job offer and her employer files a new I-140 for her. Her new priority date will be the date her own I-140 is filed, not Raj’s January 1, 2022 date. She cannot use Raj’s priority date unless a rare exception applies (which is unlikely for derivative-to-primary transitions).
• Example 3: If Raj passes away, Priya may be able to continue her green card process under INA 204(l) as a surviving spouse, using the original priority date, but only as a derivative beneficiary—not as a new principal applicant.

Required Documentation

For dependent spouses and those seeking to become principal applicants, the following documents are usually required:

• Proof of Relationship: Marriage certificate to show you are the legal spouse of the principal applicant.
• Copy of Principal Applicant’s Approved Petition: For employment-based cases, this is the approved Form I-140. You can find the official I-140 form and instructions on the USCIS website.
• Proof of Lawful Status: Copies of current visas, I-94 arrival/departure records, and any previous approval notices.
• New Petition (if becoming a principal applicant): If the spouse files their own I-140, they must submit all required supporting documents, such as job offer letters, labor certification (if needed), and evidence of qualifications.
• Adjustment of Status Application: If applying for a green card from within the United States 🇺🇸, the spouse must file Form I-485. The official form and instructions are available on the USCIS Form I-485 page.

Application Process Overview

Here’s a step-by-step look at how the process works for a dependent spouse and what happens if they want to become a principal applicant:

1. Principal Applicant Files I-140: The main applicant’s employer files Form I-140 with USCIS. The priority date is set when the petition or labor certification is filed.
2. Dependent Spouse Listed as Derivative: The spouse is included as a derivative beneficiary on the I-140 petition.
3. Green Card Application: When the priority date becomes current, both the principal applicant and the dependent spouse can file for adjustment of status (Form I-485) or go through consular processing if outside the United States 🇺🇸.
4. If Spouse Files Own I-140: If the dependent spouse later wants to become a principal applicant, their employer must file a new I-140. This new petition gets its own priority date.
5. No Automatic Priority Date Transfer: The spouse’s new I-140 does not automatically use the principal applicant’s priority date. The only way to keep an earlier priority date is if the same person is replacing their own petition in certain employment-based categories.
6. Maintain Lawful Status: The spouse must keep valid immigration status during this process to avoid problems with adjustment of status or future petitions.

Practical Tips for Meeting Requirements

• Plan Ahead: If you are a dependent spouse and think you may want to become a principal applicant in the future, understand that you will likely need to start the process from the beginning, including getting a new priority date.
• Keep Good Records: Save copies of all petitions, approval notices, and proof of status. These documents are needed for any future filings.
• Check Visa Bulletin Regularly: The U.S. Department of State Visa Bulletin shows when priority dates are current. This helps you know when you can file for a green card.
• Consult Reliable Sources: For complicated cases or if you have questions about priority date retention, talk to an experienced immigration attorney or check the USCIS Policy Manual for the latest rules.
• Understand H-4 EAD Rules: If you are an H-4 spouse (dependent of an H-1B worker) and your spouse has an approved I-140, you may qualify for an H-4 Employment Authorization Document (EAD). Learn more about H-4 EAD eligibility on the USCIS H-4 EAD page.

Common Concerns and Answers

• Can I keep my spouse’s priority date if I file my own I-140?
  • No, unless you are replacing your own petition in certain employment-based categories. Derivative spouses do not automatically inherit the principal applicant’s priority date.
• What happens if my spouse (the principal applicant) dies?
  • You may continue your green card process as a derivative under INA 204(l), but you do not get a new priority date as a principal applicant.
• Do I need to maintain lawful status while waiting?
  • Yes, always keep your status valid to avoid problems with adjustment of status or future petitions.

Official Guidance and Resources

• The USCIS Policy Manual provides detailed rules about priority dates and petition transfers.
• For information about surviving derivative beneficiaries, see INA 204(l) on the USCIS website.
• For case-specific questions, contact USCIS customer service or consult an immigration attorney.

As reported by VisaVerge.com, dependent spouses should not expect to inherit a principal applicant’s priority date if they later become a primary applicant. The rules are strict, and only rare exceptions allow priority date retention. Always check official sources and keep your documents organized to avoid delays or surprises.

Takeaway: If you are a dependent spouse, your green card process is tied to the principal applicant’s petition and priority date. If you later file your own I-140 to become a primary applicant, you will usually get a new priority date. Plan ahead, keep your status valid, and use official resources to guide your immigration journey.