I-140 & Family: USCIS Doesn't Care (Shocking Truth!)

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Including Your Family in Your EB-1, EB-2, or EB-3 Green Card Petition: What You Need to Know

People pursuing an employment-based green card through the EB-1, EB-2, or EB-3 categories often wonder about including their family members on the petition.

Spouses and unmarried children under 21 are eligible to be included as derivative beneficiaries in the petition. These family members may receive immigration benefits as a result of the principal applicant's petition.

Does having a family somehow make your case more or less appealing to USCIS?

Simplicity is Key: How to List Your Family on the I-140

Including your family on your initial Form I-140, Immigrant Petition for Alien Worker, is surprisingly straightforward. The I-140 can be filed by the petitioner on behalf of the principal beneficiary.

Here’s what you need to do:

Disclose their existence: On the I-140 form, the applicant or petitioner is requesting to include their spouse and children, regardless of their age or whether you have custody.
No evidence required (at this stage): You do not need to submit your marriage certificate, birth certificates for your children, or any other supporting documentation about them with your I-140.
Setting the groundwork: By listing them on the I-140, you lay the essential groundwork for their future immigration process. USCIS will later determine eligibility for each family member based on relevant evidence provided at subsequent stages. This prepares them to either:
Adjust their status to permanent resident when your I-140 is approved and your priority date becomes current (if they are in the U.S.).
Obtain immigrant visas overseas when your priority date becomes current (if they are outside the U.S.).

Additional petitions may be required on behalf of family members during later stages of the process.

Does USCIS Care If You're Married or Have Children?

A question I was asked just this week highlights a common concern: “Does USCIS view it negatively if I’m married or have children? Or, conversely, would they see it as a positive?”

This is a valid thought, especially given that each family member who needs a green card counts against the overall employment-based quotas. One might logically think, “If the goal is to bring in individuals of extraordinary ability, perhaps single applicants would be preferred to avoid ‘bogging down’ the system with non-extraordinary children.”

Here’s the definitive answer:

They generally don’t care about your marital or family status for your I-140 adjudication. Whether you are single, married with no children, or have ten children, it simply does not affect the approval of your I-140 petition or whether you qualify for the employment-based category.
No impact on case strength: Having family members, regardless of their number, will not make your EB-1, EB-2, or EB-3 case stronger or weaker at the I-140 stage. USCIS focuses solely on your qualifications for the employment-based category you are pursuing, and your I-140 petition must be supported by your own qualifications, not by your family status.

While your family members do count against the quota for green cards, this is a separate consideration from the merits of your I-140 petition. Your family status has no bearing on the adjudication of your extraordinary ability, advanced degree, or skilled worker petition.

What If You Didn't Include Family on Your I-140?

Life happens, and sometimes family situations evolve or past decisions are reconsidered. Perhaps:

Your children weren’t born yet when you filed your I-140.
You gained step-children after filing your petition, or realized you have fathered a child that you hadn’t known about.
You simply didn’t realize you needed to list an existing family member.
You assumed your spouse wouldn’t want to relocate and therefore didn’t include them.

This is where careful consideration and attorney consultation become critical.

The Golden Rule: Avoid Misrepresentation.
Note: The absolute most important principle in immigration law is to never, ever give the government reason to believe you are fraudulently misrepresenting a material fact about yourself or your case.
“Do They Exist?” Not “Are You Bringing Them?” The question on the I-140 form regarding family members is not “Are these the people you are bringing with you?” It’s “Do they exist?” If your spouse was your spouse, or your children were your children, at the time you filed your I-140, they should have been named on that petition.
Talk to Your Attorney. If you did not list an existing spouse or children on your I-140 petition, and you are now ready to move to the next step (e.g., Adjustment of Status or Immigrant Visa application), you must discuss these specific circumstances with your immigration attorney. The applicant may need to request to add family members at the adjustment of status or immigrant visa stage, and your attorney can advise on the proper process for submitting such a request.
Fact-Specific Situations. I am not saying that such an omission cannot be overcome, or that it will necessarily be a huge deal. However, it will be highly fact-specific to your individual circumstances, and you will need expert guidance to navigate it properly and explain the situation to USCIS.

Please note that certain procedures are only applicable in specific circumstances, and professional immigration services can help the applicant determine the best course of action and ensure all requests and documentation are handled correctly.

Before You File Your I-140: A Crucial Checklist Item

For anyone who has not yet filed their I-140 petition, I have one strong piece of advice:

As the petitioner, include your spouse and all children on the I-140 petition on their behalf.
This applies regardless of custody arrangements, marital separation (if not yet divorced), or any other personal circumstance. If they meet the definition of your spouse or child under immigration law, list them.
Gather all relevant evidence to support the inclusion of your spouse and children.

Taking this simple step upfront will save you potential headaches and complications down the road.

Navigating the complexities of employment-based immigration can be challenging, but understanding how to properly include your family can make the process much smoother. If you have any questions about your specific situation, remember that professional guidance is invaluable.

What Happens Next? From I-140 Approval to Permanent Resident Status

So, your I-140 immigrant petition is approved—congratulations! But what exactly happens next on your journey to permanent resident status, and how do your family members fit into the picture?

Here’s how the process unfolds:

Priority Date and Visa Number: Once your I-140 is approved, your priority date is locked in. The next big hurdle is waiting for a visa number to become available. The U.S. Department of State controls this, and the wait time depends on your country of origin and the type of immigrant visa you’re seeking.
Adjustment of Status or Consular Processing: If you’re already in the U.S., you may be eligible to file for adjustment of status (Form I-485) when your priority date is current. If you’re outside the U.S., you’ll go through consular processing at a U.S. embassy or consulate. Either way, this is when you and your family members (spouse and unmarried minor children) can apply for green cards as derivative beneficiaries.
Establishing Eligibility: At this stage, you’ll need to provide all the required documents to establish eligibility—not just for yourself, but for each family member applying with you. This includes proof of your advanced degree, exceptional ability, or national interest waiver, as well as documentation like marriage certificates and birth certificates for your spouse and children.
Job Offer and Labor Certification: For most employment-based green cards, your employer must provide a DOL-approved labor certification and documentation showing the offered position requires at least a bachelor’s degree or equivalent. If you’re applying under a national interest waiver, you can skip the job offer and labor certification, but you’ll need to provide evidence that your work is of substantial merit and national importance.
Additional Evidence: Be prepared to submit further information if requested by USCIS or the consulate. This could include additional evidence of your qualifications, education, or the bona fides of your marriage and family relationships.

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