New York Lawyer's Legal Updates

Who is a Child for Immigration Purposes

How One Can Bring Their Children to the US to Live With Them

Author: lawyer Alena Shautsova

Generally speaking, a "child" for Immigration purposes is an unmarried child under 21 years old. When the Immigration law refers to a "son" or "daughter", the law means a son or daughter who is married and/or over 21 years old. It is important to know this difference in order to correctly determine eligibility for Immigration benefits.

Children of the US Citizens

When a parent is a US citizen, he or she can petition for their children to come to the US. If a child is unmarried and under 21 years old, the child is considered to be an immediate relative of the US citizen for whom an Immigrant visa number is immediately available. It means that as soon as US citizen's petition for his or her child gets approved, the child can apply for an immigrant visa, and will receive permanent resident status shortly.

When a son or daughter of a US citizen is over 21years old and/or is married even if under 21, such a son or daughter will have to wait for the immigrant visa number to become available. The wait time varies, and usually takes years. The information on wait time is provided by the U.S. Department of State on a monthly basis, and can be found here: U.S. Department of State Visa Bulletin.

Children of Permanent Residents

A permanent resident likewise may petition for his or her children. However, the children must be under 21 years old, or if they are older, must be unmarried. The wait time for immigrant visas for these categories of applicants is also very long.

Here are some exceptions that were created by the law for children of permanent residents.

First of all, if a parent obtains his or her permanent resident status through a marriage to a US citizen, than such a US citizen may petition for his or her spouse' unmarried children by including them on I-130 form filed for the non-US spouse. The Immigration law allows a stepparent to petition for a stepchild, under condition that the marriage creating step-child-parent relationship occurred before the child's 18s birthday.

If, however, the US citizen did not do so, the parent of the children will need to petition for them by filing a separate form I-130 after the parent gets his or her permanent resident status.

Second, if a parent receives his or her permanent resident status not through marriage, but, let's say, DV lottery, employment, or because a US citizen sibling or US citizen parent sponsored them, then such a parent does not have to file a separate I-130 for his or her children, but should file a FOLLOWING TO JOIN petition, form I-824. This filing allows the parent to inform Immigration authorities that the children should receive permanent resident status as well. The USCIS will inform the consulate abroad, and the child would not need to wait for a long time to come to the US and live with the parent. Children may be eligible for following-to-join benefits if:

  • Parent immigrated on the basis of a fiance(e) petition; or
  • on the basis of a diversity immigrant application; or
  • on the basis of an employment-based petition; or
  • on the basis of a petition filed by a brother or sister; or
  • on the basis of an immigrant petition filed by a US citizen parent(s) when the parent was married or when the parent was unmarried and over 21 years of age; or
  • on the basis of parent's relationship with parent's lawful permanent resident parents when the parent was unmarried.

A child to be eligible for following-to-join benefits, he or she must:

  • Be unmarried; and
  • Be under 21 years of age; and
  • Be a child of the parent prior to admission to the US; or
  • Be a stepchild from a marriage of a parent (the marriage must have existed at the time of admission to the U.S.); or
  • Be legally adopted prior to admission to the U.S., and otherwise qualify as an adopted child under the Immigration law.

If the child accompanies a parent who immigrates to the US on fiance visa, to be eligible for following to join benefits, the child must be under 21 years old on the date of the admission to the US, even if the marriage between the fiance-parent and US citizen occurs after the child turns 18. 1Matter of Hieu Trung LE, Respondent, June 23, 2011.

Conditional permanent residents:

If a stepparent is petitioning for a step-child and has not been married to the child's biological parent for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident (CPR) status. Form I-751, Petition to Remove the Conditions on Residence is used to remove the conditional basis of permanent residence.

Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent's petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child's residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent's petitioning spouse due to the child's not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751).

Finally, the Child Status Protection Act (the CSPA), Pub. L. No. 107-208 (Aug. 6, 2002) provides benefits to those children for whom the immigration petitions were filed when they were under 21, but got adjudicated after the children turned 21, or "aged out." The CSPA does not change the definition of a child, but instead establishes a formula for determining "age" that is not based solely on chronological age. The CSPA applies to:

  • Derivative beneficiaries of asylum and refugee applications (the child must be under 21 at the time the asylum application was filed);
  • Children of U.S. citizens;
  • Children of lawful permanent residents (LPR); and
  • Derivative beneficiaries of family-based, employment-based and diversity visas.

As a general rule, the CSPA freezes the age of a child of a US citizen on the date that the US parent files an I-130 visa petition for the child (or the date on which an immediate relative files a self-petition under VAWA). CSPA ©2; 8 U.S.C. ©© 1151(f)(1).

Child of Permanent Resident or Derivative beneficiaries of family-based, employment-based and diversity visas

For this group of children, the process of determining the age is more complicated. The formula for these cases is that the child's age will freeze as of the date that a visa number becomes available for the petition in question reduced by the number of days that the petition was pending, but only if the child seeks to acquire the status of an LPR within one year of the date the visa became available. CSPA §3; * U.S.C. §§ 1153(h)(1) and (2). This CSPA benefit also applies to self-petitioners and to derivatives of self-petitioners. 8 U.S.C. § 1153(h)(4).

As such, one must first determine the child's age at the time a visa number becomes available (a visa number becomes available on the first day of the month that the DOS Visa Bulletin says that the priority date has been reached); then subtract from this age the number of days that the visa petition was pending (a petition is pending between the date that the petition is properly filed (receipt date) and the date that an approval is issued. In family-sponsored cases, the receipt date is the priority date. For employment-based cases, the date to be used in CSPA calculations is the date the I-140 is filed (the receipt date) and not the priority date); and determine whether the beneficiary sought permanent resident status within one year of the visa availability date.

There is a number of Statutes that further explain the benefits for age-out children in special circumstances:

Under the USA Patriot Act, the child beneficiary of a petition filed prior to September 11, 2001, will remain eligible for child status for 45 days if they turn 21 after September 11, 2001. Children who turn 21 during September 2001, will remain eligible for child status for an additional 90 days. USA PATRIOT Act of 2001, Pub.L. No. 107-56, 115 Stat. 272. The Child Status Protection Act - Children of Asylees and Refugees (August 17, 2004).

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