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Please note that for immigration purposes, the
terms “child” and “son or daughter” are different and have very specific
definitions.
The immigration law defines a child as an unmarried person under the age of 21 (a minor) who is:
- A child
born to parents who are married to each other (born in wedlock);
- A stepchild if the marriage creating the
step-relationship took place before the child reached the age of 18;
- A child born out of wedlock (the parents were not
married at the time the child was born). Note: If the father is filing the
petition, proof of a bona fide (real and established) relationship with the
father must be supplied;
- An adopted child if the child was adopted before the
age of 16 and has lived with the adoptive parent(s) in their legal custody for
at least two years;
- An orphan under the age of 16 when an adoptive or
prospective adoptive parent files a visa petition on his or her behalf, who has
been adopted abroad by a U.S. citizen or is coming to the U.S. for adoption by
a U.S. citizen; or
- A child adopted who is under the age of 18 and the
natural sibling of an orphan or adopted child under the age of 16, if adopted
with or after the sibling. The child must also otherwise fit the
definition of orphan or adopted child.
Definition of a Son or Daughter
The immigration law defines a son or daughter
as a person who was once a child but who is now either married or over the age
of 21.
Overview of Immigration Process
There is a three-step process for a child or son
or daughter to become a lawful permanent resident, unless he/she is already in
the U.S. in lawful status (see Combined Processing below):
- The USCIS must approve an immigrant visa petition (Form
I-130, Petition for Alien Relative) filed on behalf of the foreign child, son
or daughter.
- An immigrant visa must be available based on the date
the immigrant visa application was filed.
- If the child, son or daughter is outside the U.S. when the
visa petition is approved and when an immigrant visa number (if required) becomes
available, the child will be notified by the Department of State’s National
Visa Center to complete the processing for an immigrant visa. If the child, son
or daughter is legally inside the U.S. when the visa petition is approved and
when an immigrant visa number (if required) becomes available, he or she may
apply for adjustment of status to that
of a lawful permanent resident with the appropriate USCIS Regional Service
Center.
Combined Processing for Children Already in
the U.S.
Since an unmarried child under the age of 21 is immediately
eligible for an immigrant visa, the USCIS allows for Combined Processing this
category. This means that if the child is legally in the U.S. (through a lawful
admission or parole) at the time of filing the Form I-130, Petition for Alien Relative,
he/she may also file for adjustment of status
at the same time. Combined Processing is only available to
beneficiaries/applicants who are in the U.S.
Who is Eligible to Sponsor a Child?
A U.S. citizen may petition for:
- A child (unmarried and under 21 years of age)
- An unmarried son or daughter (over 21 years of age)
- A married
son or daughter of any age
NOTE: A
U.S. Citizen's unmarried, minor child is considered an immediate relative, does
not need a visa number, and is eligible to receive an immigrant visa
immediately. Otherwise, sons and daughters of U.S. citizens will be eligible
for a visa when their priority date is listed on the Visa Bulletin.
A lawful permanent resident may
petition for:
- A child (unmarried and under 21 years of age)
- An
unmarried son or daughter (over 21 years of age)
A lawful permanent resident may not petition
for a married son or daughter.
NOTE: If a
lawful permanent resident had children before becoming a permanent resident and
did not immigrate as an immediate relative of a U.S. citizen, his/her
unmarried, minor children may be eligible to receive following-to-join
benefits. This means that a separate Form I-130 for the children is not
required, and the children will not have to wait any extra time for a visa
number to become available.
Filing the Petition
The form to petition for a child, son, or
daughter is the Form I-130, Petition for Alien Relative. The Form I-130 is
submitted to the appropriate USCIS Regional Service Center along with the filing fee and evidence of the Petitioner’s
U.S. Citizenship or Lawful Permanent Residence status and evidence of the
parent-child relationship. NOTE: If the
petitioner is the father, evidence that the father was married to the mother at
the time of birth must be submitted (i.e. birth certificate). If the couple was
not married, evidence that the father had a bona fide relationship with the
child, son or daughter must be submitted.
The form to petition for an orphan is Form I-600
and the form to use for advance processing is Form I-600A.
The information contained in this web page is intended strictly to be used for information purposes and to educate the public in a general manner. The information contained in this page should not be considered legal advice, legal consultation, expressed or implied representation or a formal or an informal retention of this office. To create a formal attorney-client relationship a retainer must be signed and a fee must be paid to this office. Our response to any of your questions, comments, concerns etc. does not establish an attorney-client relationship. By responding to your questions we do not consider ourselves your attorneys. The response to your questions is strictly informational in nature and should not be considered or used as legal advice in any manner. The information contained on this site is general information on immigration laws and issues. The general information that is included in this web page will not cover the various exceptions and loopholes that are prevalent in the Immigration laws. We hope that our web page will educate you and hopefully enhance your understanding of Immigration laws.
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