New York Lawyer's Legal Updates

Children As Dependents For Immigration Purposes

Author: New York Immigration Lawyer Alena Shautsova

Earlier, I wrote a blog about who qualifies as a child for Immigration purposes. Here, I would like to discuss some situations when it is important not only to originally qualify as a child, but to retain such a qualification at the time of the adjudication of certain applications.

When it comes to dependent children most of the time clients are concerned about them “aging out” or getting too old after the petition is filed. Child Status Protection Act cures the issue in many cases, but not all.

A commonly overlooked issue, however, is the way a child may stop being a child for Immigration purposes and lose an ability to receive Immigration benefits through their parents. For example, often a permanent resident sponsors an unmarried son or daughter. Before getting to the US but after an Immigrant visa is received, the son/daughter gets married. The son/daughter enters the US and receives a green card. Applies for citizenship in a number of years… and find him/herself in Immigration court proceedings. The marriage made son/daughter ineligible for the family preference green card, as there is no category for married sons/daughters of permanent residents. If the son waited to get married after he came to the US and was admitted in permanent resident status at the border, he would not have any Immigration issues.

Another common situation where marriage destroys the qualifying relationship and ability to adjust status is when a dependent asylee child gets married. Consider this scenario: a parent was granted asylum in the US, and parent’s unmarried child was included in the application. The child either received an asylee status with the parent in the US or came to the US after the parent filed I-730 form. The child files his/her application for adjustment of status after being physically present in the US for year in an asylee/refugee status. The child gets married before the adjustment of status application is decided. The marriage destroys child’s ability to adjust. The application will be denied, or, if granted, will be granted in error.

Finally, another common scenario when children lose their ability to obtain Immigration benefits is divorce of step parents. If the child is a conditional resident, he/she may file I-751 form, but will have to present proof that the parents’ marriage was bona fide. In case of asylum dependents, they can cure the problem by filing a nun pro tunc asylum application.

There might be other solutions available, but a consultation with an attorney is needed. As shown in the above examples, consequences of otherwise innocent steps may be drastic for certain Immigration situations. Most importantly, such consequences can be easily avoided if a person would follow correct legal advice.

25 April 2016
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