U.S. immigration policy favors keeping families together, especially parents and their children. Accordingly, a child frequently qualifies for an immigrant visa or U.S. permanent resident status through parents. That's why it is important to understand exactly who the law says is—and is not—a "child" for visa purposes. This article will summarize the law (found at I.N.A. § 101(b)(1) and 8 U.S.C. § 1101(b)(1)), focusing in particular on qualifying for family-based immigrant visas, otherwise known as U.S. lawful permanent residence (a green card).
To be considered a "child" for visa purposes, a person must (in most cases) be under 21 years old. On and after the person's 21st birthday, U.S. immigration law calls the person an "adult son or daughter." Adult sons and daughters sometimes qualify for visas, but they do not have the same favored status as "children."
Because some visa application processes take a long time, it sometimes happens that someone who qualified as a "child" at the beginning of the application process turns 21 before getting the U.S. immigrant visa. The law requires the person to still be under 21 at the time the visa or green card is approved; therefore, this "aging out" can create problems.
However, a law called the Child Status Protection Act helps children with this "aging out" problem. It allows certain persons who are older than 21 to qualify for their visa or green card as if they were still "children." To understand how it works, see How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens and How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries.
In all cases, a "child" must be unmarried to be petitioned (sponsored) by a U.S. citizen or lawful permanent resident parent in a green card category for children.
Married sons and daughters of U.S. citizens can qualify for an immigrant visa if the sponsoring parent is a U.S. citizen, but they do not have the same favored status as "children," and will typically face a years-long wait before approval. Therefore, it is important for children who are awaiting a U.S. immigrant visa and thinking about getting married to understand the immigration consequences before getting married.
U.S. immigration law defines children more broadly than merely biological children born to married parents, so be sure to take a close look at the details.
The least complicated, most readily recognized and proven parent-child relationship is when the potential visa applicant's mother was married to the father at the time of birth. In this case, the person is the "child" of the mother and of the father until reaching age 21 or getting married. This is true even if the mother and father divorce after the child is born.
If the natural father and natural mother were not married at the time of birth, the person is a "child" of the natural mother automatically, and is a "child" of the father if the father has or had a bona fide parent-child relationship with the child.
A "stepchild"—someone whose natural mother or father later married someone else—is the "child" of the new spouse only if the stepchild had not reached the age of 18 when that new marriage occurred.
If the new marriage ends in death, divorce, or separation, the person is still the "child" of the natural parent, but is no longer the "child" of the stepparent unless they have an ongoing relationship.
A person can become someone's "child" through a legal process called "legitimation." (See Legitimacy of Children Born to Unmarried Parents.) This usually occurs when a father, who was not married to a child's natural mother at the time of the child's birth, wants to prove or assume legal responsibility for that child as his own.
To be a legitimated "child" of a parent for visa purposes, the child must be legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States. Furthermore, the legitimation must take place before the child reaches the age of 18 and while the child is in the legal custody of the legitimating parent or parents.
A parent-child relationship can also be formed through adoption, in any of several different ways.
A person adopted while under the age of 16 is a "child" if they were in the legal custody of, and have resided with, the adopting parent or parents for at least two years. (There is no two-year requirement if the child was battered or subject to extreme cruelty by the adopting U.S. parent or by a family member of the adopting parent residing in the same U.S. household.)
An orphan can become an adopted "child" under certain circumstances if under the age of 16 at the time the adopting parent or parents file an immigrant visa petition for them as an "immediate relative."
To help keep adoptable brothers and sisters together, the age limit for an adopted "child" in the two categories above is raised to 18 in a case where the adopting parent or parents have also adopted the person's natural sibling.
A person adopted in a foreign state that is a party to the "Hague Convention" on adoption, or who is emigrating from such a foreign state to be adopted in the U.S., can become an adopted "child" under certain circumstances if under the age of 16 at the time the adopting parent or parents file an immigrant visa petition for them as an "immediate relative." The person is a "child" of the adopting parent or parents, and is no longer the "child" of any natural parent for U.S. immigration purposes.
If you wish a personal legal analysis, or assistance preparing immigration paperwork and monitoring your case as it makes its way through the U.S. government bureaucracy (often a years-long process) hiring an immigration attorney will be worth your while. See How to Find a Good Immigration Lawyer For Your Case.
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