Many of my clients consist of parents who are applying (petitioning) for green cards for their children. However, it may not be immediately clear as to who is considered to be a “child” in the immigration process. As a Miami immigration lawyer, I am happy to help shed some light on this matter. Below are some frequently asked questions about applying for a green card for your child.
Who is considered to be a “child” for immigration purposes?
For immigration purposes, a child can be any of the following:
- A genetic child born in wedlock
- A genetic child born out of wedlock: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 (one exception is if siblings are adopted, as long as one was under 16, the other could be older than 16 but younger than 18), 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)
I am a U.S. Citizen. I live with my child in the United States. What is the process like? If you are a U.S. Citizen who is petitioning for your child who is living in the United States, you can pick of two options:
One Step Process
Certain people are eligible to apply for a green card (permanent residence) while inside the United States. An immediate relative relationship allows the applicant to apply with Form I-485, Application to Register Permanent Residence or Adjust Status, to become a permanent resident at the same time the U.S. citizen petitioner and/or his Miami immigration lawyer files Form I-130, Petition for Alien Relative.
Two Step Process
Your Miami immigration lawyer has the option of filing the I-485 application any time after the Form I-130 is filed – as long as it has not been denied. Generally, your Miami immigration lawyer will need to submit a copy of Form I-797, Notice of Action, with Form I-485, that shows the Form I-130 petition is either pending or approved.
I am a U.S. Citizen, and my child is living outside the United States. What are my options?
If the scenario above applies to you, your Miami immigration lawyer can help you become a permanent resident through consular processing. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-130 petition when a visa is available. Your child can then travel on the visa and will officially become a permanent resident when admitted at a U.S. port of entry. Note: The Department of State will notify your child when he/she is eligible to apply for an immigrant visa. If your child does not apply for an immigrant visa within one year following notification from the Department of State, his/her petition may be terminated.
My parent is petitioning for me. What else should I know:
When meeting with the children of petitioners (i.e. the beneficiaries of their application), I like to remind them of the following:
- Turning 21 years of age. When an immediate relative child of a U.S. citizen reaches the 21 years of age, he or she generally will become a “first preference” (F1) category son or daughter (over 21 years of age) of a U.S. citizen, and will no longer have a visa immediately available. This change may result in a significant delay in adjustment of status or visa processing because he or she will now need to wait for an immigrant visa to become available.
- Child Status Protection Act. In certain cases, the Child Status Protection Act (CSPA) may allow you to retain the classification of “child” even if you have reached age 21. Generally, your age is “frozen” as of the date your U.S. citizen parent files Form I-130 for you.
- Getting Married. If an immediate relative child under age 21 gets married, he or she can no longer be classified as an “immediate relative” and will become a “third preference” (F3) category married son or daughter of a U.S. citizen and a visa would no longer be immediately available.
If you would like more information on getting a green card for your children, please contact Miami immigration attorney Michael G. Murray, Esq. at (305) 895-2500 or visit our website at murraysilva.com .