If I didn't include my family members on my U visa application, can I include them when I apply for lawful permanent residence?
Although it is usually better to file for U visas for your family members at the time that you file your own petition, if you didn’t do that, you may be able to include them when you file for lawful permanent residence, regardless of whether they are in the U.S. or abroad.1
In other words, when you apply for your green card, you can file a form that would eventually allow your family members to apply for their own green cards members as well.
The process for your family members to get green cards through this process is very different than if you include them at the time that you file your own U visa petition in the following ways:
Forms: When you include your family members as derivatives at the time that you file your own U visa petition, you file Form I-918 Supplement A for each family member, along with any other forms they may need, such as the Form I-192 (waiver of inadmissibility) and Form I-765 (application for employment authorization). However, if you are including your family members when you apply for permanent residence, you file Form I-929 for each family member. They would not need to file any more forms until the Form I-929 is approved.
Timing and Process: You can only file Form I-929 at the same time or after you have applied for permanent residence. In addition, you can file Form I-929 after USCIS has approved your permanent residence application. USCIS will not approve Form I-929 until after you have become a permanent resident. Once the Form I-929 is approved, your family members can immediately file their own application to become permanent residents. If they are outside the U.S. when the Form I-929 is approved, they will need to request permission from the U.S. consulate to enter the United States as lawful permanent residents.
In a Form I-929, you have to show the following:
- Qualifying relationship: First, you can only file Form I-929 for your spouse and children who are unmarried and under 21. If you are under 21, you can also file for your parents. Unlike when you file a U visa application, you cannot include your siblings, even if you are under 21 and they are unmarried and under 18. Second, your children must remain under 21 and unmarried until USCIS has approved their applications for lawful permanent residence unlike with a U visa where they have to be under 21 and unmarried at the time of the application only. If your children are outside the U.S. when you file for their green cards, they must enter the U.S. with their visa before turning 21. Unfortunately, there is no way to know how long USCIS will take to review the applications, and the process can take years.
- Extreme Hardship: You must also show that you or your family member will suffer “extreme hardship” if your family member is not permitted to enter or remain in the United States.1 USCIS looks at many things to decide whether you have shown “extreme hardship,” such as:
- the type and degree of the physical or mental abuse suffered as a result of being a victim of crime;
- the effect on you or your family member of losing access to the U.S. courts or criminal justice system;
- the probability that the perpetrator’s family, friends, or others acting on behalf of the perpetrator in the home country would harm you or your children;
- the need for social, medical, mental health, or other supportive services for victims of crime that are not available or accessible in the home country;
- in domestic violence cases, whether there are laws and social practices in the home country that punish you or your children because you have been victims of domestic violence or have taken steps to leave an abusive home;
- the perpetrator’s ability to travel to the home country and the ability and willingness of authorities in the home country to protect you or your children; and
- your age at the time of entry into the U.S. and at the time you apply for lawful permanent residence. For example, if you are a child and are applying for your parent, you may be able to show that you would suffer extreme hardship if your parent is not allowed to remain in the U.S. with you due to your young age.2
If there are other reasons why you or your family members would suffer extreme hardship, you can each describe those in your personal statements and/or provide other documentation. As always, your and your family members’ personal statements will be crucial towards building your proof of extreme hardship.
1 INA § 245(m)(3)
2 8 CFR § 245.24(h)(1)(iv)