Children, Sons and Daughters of the U.S. Citizen

If you are U.S. citizen, you may petition for your foreign born children, son(s) and/or daughter(s) to immigrate to the U.S. and receive green cards. The age and marital status of your children are important factors in the immigration process. For immigration purposes, a “child” is defined as being unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter”. Click here for more information and specification for who qualifies as children for immigration purposes.

Eligibility Requirements

If you are a U.S. citizen, you may petition for:

 

  • Children of the U.S. Citizen (Unmarried and Under 21).
  • Unmarried Son or Daughter of the U.S. Citizen (Over 21 years old). Their children can be included in the petition.
  • Married Son or Daughter of the U.S. Citizen (Any age). Their children and spouses can be included in the petition.

 

In order to keep the control over the quantity of aliens that come to the U.S. every year, federal government issues certain amount of immigrant visas for family members, that live in foreign countries. Since the quantity of immigrants that want to reuntie with their family members in the U.S. is significantly big, the USCIS developed the “family preference categories list” which basically divided all foreign relatives into two categories: imediate family members and other family members. Immediate family members catergory includes spouse, parents and children under 21 years old of the U.S. citizen. Other family members category covers unmarried son or daugter over 21 years old, married son or daughter, siblings. The main purpose for creating two categories was to expedite the process of bringing immediate family members to the U.S.

 

  1.   Children of the U.S. Citizen (Unmarried and Under 21). Under Immigration and Nationality Act, children of the U.S. citizen, unmarried and under the age of 21, are considered as immediate relatives of the U.S. citizen. The biggest advantage of being classified as an immediate relative for immigration purposes is they can immigrate to the United States without waiting in the line until priority date becomes available for them.

 

  1.  Unmarried Son or Daughter of the U.S. Citizen (Over 21 years old). Under Immigration and Nationality Act, unmarried sons and daughters over 21 years old are classified as family members of the U.S. citizen not as immediate relatives. They are placed on the waiting list for an immigrant visa in the First Preference Category. You will need to start tracking the progress of priority dates in F1 category by monitoring State Department’s Visa Bulletin to determine when immigrant visa number for them becomes available. But because so many people have already applied under this category in the past, the wait is extremely long. Typically, the average wait time for most of countries is 8 years. Furthermore, because the U.S. limits the number of immigrant visas available by country for this category, your sons and daughter may have to wait longer if they come from Mexico (average wait is 21 years).

 

Keep in Mind: If your unmarried daughter or son gets married prior to becoming permanent resident, then they are no longer qualified as “Unmarried Son or Daughter of the U.S. citizen” under First Preference Category. They will be shifted to the Third Preference Category “Married Son or Daughter of the U.S. Citizen.” This change of their marital status may result in a significant delay of their immigration process by adding extra years of wait in the Third Preference Category.

 

III.  Married Son or Daughter of the U.S. Citizen (Any age). Under Immigration and Nationality Act, married sons and daughters regardless of age are classified as family members of the U.S. citizen not as immediate relatives. They are placed on the waiting list for an immigrant visa in the Third Preference Category. The average wait time for most of countries under this category is 11 years. If your sons and daughters come from Mexico or Philippines, they may have to wait for more than 22 years due to high demand of immigrant visas from those countries. You can monitor the availability of immigrant numbers for this category at the State Department’s website here.

 

How to Bring Your Married/Unmarried Son or Daughter Over 21 Years Old to The U.S.?

There are two scenarios for married/unmarried son or daughter of the U.S. citizen to get a green card:

 

  1.  The first scenario is that the son or daughter already in the United States in a nonimmigrant status. In this case, the U.S. citizen may only file an immigration petition on behalf of their son or daughter and wait for the immigrant visa number to become current. During this waiting period, son or daughter needs to independently maintain a valid nonimmigrant status in the U.S. (e.g. on students or business visa). If by the time the immigrant visa number became available, son or daughter of the U.S. citizen are still in the U.S., he or she may apply to adjust non-immigrant status to permanent resident (Form I-485).

 

Son or daughter are illegally in the U.S.?

 

If your son or daughter are illegally in the U.S. (overstayed their visa or failed to maintain their non-immigrant status in the U.S.) at the time when immigrant visa number became available for them, they will not be able to get a green card. Living in the U.S. without authorization can lead to accruing “unlawful presence” preventing them from adjusting their illegal status to permanent resident status.

 

 

  1.  The second scenario is that the son or daughter is outside the United States. In this case, the green card holder and children, son or daughter need to go through few steps to get a green card:

 

  1.   Filing the immigration petition by the U.S. citizen holder on behalf of his/her children, son or daughter (I-130). To start the process of immigration for your children, son or daughter you will need to file Form I-130 with accompanying documents.
  2.   Obtaining an Immigrant Visa Number. If the immigrant visa petition is approved, your children, son or daughter must wait for an immigrant visa number to become available in the First and Third Preference Categories depending on the age and marital status. Because the number of immigrant visa numbers that are available each year is limited, from 8 to 11 years could pass between the time USCIS approves the immigrant visa petition and the State Department providing an immigrant visa number for them.
  •  Case Processing and Interview Preparation. Once the immigrant visa number becomes available, the petition will be forwarded to the U.S. Consulate or Embassy in the son’s or daughter’s home country for processing. Son or daughter will be instructed to file an application for an immigrant visa in the consulate or embassy in his/her country. After applying for an immigrant visa, they must appear for a visa interview. If the interview is successful, an immigrant visa will be issued to the son or daughter enabling him/her to enter the U.S.
  1.  Entering the U.S. An immigrant visa is valid for a maximum period of six months from the date of issuance. Son or daughter must travel and apply for admission to the United States within that six months period. On the day that the son or daughter enters the United States on an immigrant visa, he or she becomes permanent resident.

Don’t misuse travel visa! Some people try to avoid consular processing from their home country and come to the U.S. on a tourist visa in a month before their immigrant visa number becomes available with original intent to adjust their non-immigrant status in the U.S. This is not a good idea as it would constitute a fraudulent use of tourist visa and eventually lead to the green card being denied.

Who is Considered to be a “Child” in the Immigration Process?

For immigration purposes, a child can be any of the following:

 

  • A genetic child born while IN marriage.
  • A genetic child born OUTSIDE of marriage :
    • If the mother is petitioning, no legitimation is required.
    • If the father is petitioning, legitimation is required in accordance with the laws of the father or child’s place of residence.
    • If the father is petitioning and the relationship is not legitimated under applicable laws, a bona fide parent-child relationship must be shown to have existed prior to the child’s 21st birthday and while the child was unmarried.
    • A child born through Assisted Reproductive Technology (ART) to a non-genetic gestational mother who is recognized under the law of the relevant jurisdiction as the child’s legal parent at the time of the child’s birth.
  • A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18.

An adopted child if the child was adopted prior to age 16 AND the adopted child has resided in the legal and physical custody of the adoptive parent for 2 years prior to filing (the legal and physical custody do not have to be the same time period, but each must be met for 2 years).

The information herein has been taken from our partner’s website https://myusaimmigration.com