Bringing Family Members to the United States on an Employment-Based Visa: What You Need to Know

Family members undoubtedly provide strength and emotional support to employment-based applicants who are juggling high-level careers–providing scholarly and scientific contributions to their field–in addition to having a family and personal life. The United States has provided a path to permanent residency for families in this visa category, and USCIS explains that if criteria are met for employment-based visas (by demonstrating extraordinary ability, accomplishing outstanding achievements as a researcher or professor, or  working as a certain kind of multinational manager or executive), then spouses and unmarried children under age 21 may be eligible to apply for admission to the United States [1]. This means that the employment-based immigration process allows the “principal” applicant to bring spouses and children to the United States. This is a fantastic way for families to be together during this journey! Family members can avoid long separations and additional time and expense for separate petitions since they can “accompany” or “follow to join” the principal applicant in the United States.

The United States makes 140,000 employment-based immigrant visas available every fiscal year, which includes an allocation for family members. This number is divided among the five categories of employment-based visas, subject to per country restrictions as described by the Immigration and Nationality Act (INA) Section 203(b) [2]. Additionally, the yearly employment-based visa cap includes 140,000 plus any unused visas from the family-based categories of the prior year. In 2023, the total preference (which is the categorization and allocation of visas) immigration cap was 423,091. 197,091 were employment-based visas, accounting for 17% of all new lawful permanent residents (LPR) in the U.S. [3]. While employment-based visas are generally all used by fiscal year end, this family-based visa flexibility ensures that more workers and their families can enter when family-based visa demand is lower, which can be reassuring for potential employment visa applicants.

Here is some key information to remember during the employment-based visa process if you are thinking about including family members in your employment-based petition:

• The family member must properly file the Form I-485. According to USCIS, this could mean that the family member should file along with the principal applicant while the principal applicant’s I-485 is pending with USCIS, after the principal applicant’s I-485 is approved or after the principal applicant becomes an LPR [6]. 

• The family member must be the principal applicant’s spouse or child (also called a “derivative” applicant) [5].

• The family member has been inspected and admitted (or inspected and paroled) into the United States and is physically present at the time of filing the I-485 [6].

• An immigrant visa is immediately available to the family member at the time of filing the Form I-485 and at the time USCIS makes a final decision on the application [6].

• The family member has no bars to adjustment of status (legal restrictions that can prevent the family member from becoming an LPR) and is admissible to the United States (or eligible for a waiver of inadmissibility, if any bars to adjustment are applicable to the family member) [6].

• Finally, the family member merits a “favorable exercise of discretion", which means that USCIS will look at the application and make a positive determination based on all of the factors [6].

Despite increased anxiety about the immigration process in 2025, employers are still filing petitions for foreign workers, which means they are addressing labor shortages, and increasing innovation and research in STEM. Hopeful employment-based visa applicants and their families can still feel confident moving forward in the immigration process. Our firm has assisted our many employment-based clients and their families in their journey from visa approval to permanent residency, which has been a rewarding experience! While navigating through the EB process with family members, it is important to make sure that all eligibility requirements are met. Provide USCIS with complete and truthful information,  with documentation that is filed appropriately, in order to avoid any delays and for USCIS to make a timely decision on your application.

If you need more information or assistance in this process, please book a consultation with our firm: Book a Consultation | Lisonbee Immigration

References: 

1. U.S. Department of State. Employment-based immigrant visas.

2. Employment-Based Adjustment of Status FAQs.

3. Office of Homeland Security Statistics. Lawful Permanent Residents: 2023.

4. Green Card for Employment Based Immigrants.

5. USCIS policy guidance regarding Family Members.

6. Eligibility Requirements to become a Lawful Permanent Resident. Eligibility for Family Members.

7. Visa Availability and Priority Dates.

This post is part 3 of a new 17-week series published every Wednesday. Each post is written by a different employee of Lisonbee Immigration Law about a immigration topic of their choosing. This post was written by legal writer Sarah Goldsworthy.