BRINGING CHILDREN, SONS AND DAUGHTERS OF GREEN CARD HOLDER” TO LIVE IN THE UNITED STATES
If you are green card holder, you may petition for your foreign born children, son and daughter 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 spefication for who qualifies as children for immigration purposes.
As a Greencard holder, you may petition for:
I. Children of the Green Card Holder(Unmarried and Under 21). Children of the Green Card Holder, unmarried and under the age of 21, are placed in the family preference list (F2A category). As soon as you start immigration process for your children, he/she will be assigned a “priority date” and placed on the waiting list for an immigrant visa. You will need to start tracking the progress of priority dates in F2A category by monitoring State Department’s Visa Bulletin to determine when immigrant visa number for your children becomes available. Typically, the average wait time for most of countries is 2 years.
Remember that even after the wait is over, processing a green card application may take several months. That’s why it is important to have an experienced immigration attorney on your side who can assist you in this long-expected process as even a little mistake made at the stage of filing an immigration petition on behalf of your spouse can cost you several years of additional wait.
II. Unmarried Son or Daughter of the Green Card Holder (Over 21 years old). Under Immigration and Nationality Act, unmarried sons and daughters over 21 years old of green card holders are placed on the waiting list for an immigrant visa in the Second Preference Category. You will need to start tracking the progress of priority dates in F2B category by monitoring the 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 20 years).
Keep in mind that if your unmarried daughter or son gets married prior to becoming permanent resident, then they are no longer qualify as “Unmarried Son or Daughter of the Green Card Holder” under Second Preference Category to receive a green card. Moreover, there is no separate category named “Married Son or Daughter of the Green Card Holder” in the family preference list. Immigration and Nationality Act doesn’t provide for an opportunity for green card holders to sponsor their married sons and daughters to obtain a green card. It means that marriage of your son or daughter will automatically deprive you an opportunity to reunite with them in U.S. while you are green card holder. However, you can file immigration petition for your married son or daughter along with their spouses and children when you become U.S. Citizen.Under Immigration and Nationality Act, only U.S. Citizen is entitled to petition for their married son or daughter regardless of their age. If this is your case, they will be shifted to the Third Preference Category and placed in the waiting list for extra years.
How to Bring Your Married/Unmarried Son or Daughter Over 21 Years Old to The U.S. as a Greencard Holder?
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 green card holder may only file an immigration petition on behalf of their children, son or daughter and wait for the immigrant visa number to become current. During this waiting period, children, son or daughter need to independently maintain a valid nonimmigrant status in the U.S. (e.g. on travel, 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).
Don’t misuse the travel visa! People try to avoid consular processing from their home country and come to the U.S. on a tourist visa before their immigrant visa number becomes available with original intent to adjust their non-immigrant status in the U.S. This constitutes a fraudulent use of tourist visa and eventually lead to denial of the green card.
If your children overstayed their visa or failed to maintain their non-immigrant status in the U.S. and at the time when immigrant visa number became available for them are illegally in the U.S., 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.
2. The second scenario is that the son or daughter is outside the United States. In this case, the U.S. citizen and son or daughter need to go through few steps to get a green card:
I. Filing the immigration petition by U.S. citizen on behalf of his son or daughter (I-130). To start the process of immigration for your son or daughter you will need to file Form I-130 with accompanying documents. It will take few years for USCIS to approve immigrant petition depending on the son or daughter’ home country.
II. Obtaining an Immigrant Visa Number. If the immigrant visa petition is approved, your son or daughter must wait for an immigrant visa number to become available according to the preference system. Because the number of immigrant visa numbers that are available each year is limited, several years could pass between the time USCIS approves the immigrant visa petition and the State Department providing an immigrant visa number. Because U.S. law limits the number of immigrant visas available by country, they may have to wait longer if they come from a country with high demand for U.S. immigrant visas.
III. 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. The child 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.
IV. Entering the U.S. An immigrant visa is valid for a maximum period of six months from the date of issuance. The child 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.
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).