Child of a U.S. Citizen.The process for petitioning for a child is based on:
- The status of the petitioning parent' whether the parent is a U.S. citizen or as a permanent resident;
- Proving the underlying qualifying parent-child relationship, which includes that the beneficiary-child meets the definition of a "child" in the Immigration and Nationality Act (INA).
The Immigration and Nationality Act (INA) definition of a "child", as an:
- Unmarried person; and,
- Under the age of 21 years old (i.e., is a minor).
"Unmarried" means continually unmarried during all relevant times (filing of the petition; applying for the immigrant visa; and date of actual admission to the U.S. as the unmarried child or unmarried son or daughter of the U.S. citizen or LPR, whether or not previously married).
A "child" includes the following:
- "Orphan Child" - the child must be under the age of 16 years old at the time the petition is filed on his or her behalf to classify the child as an immediate relative. The orphan provision only applies to a petition by a U.S. citizen and spouse or an unmarried U.S. citizen at least 25 years old, who personally saw the child prior to adoption or has complied with the pre-adoption requirements of the child's proposed residence. A separated U.S. citizen may not petition for an orphan unless the estranged spouse joins in the process.
- "Stepchild" - provided the child was under18 years old when the marriage creating the stepchild relationship occurred. The stepchild relationship can outlast the marriage that created it.
- "Adopted Child" - provided the child must be adopted while under the age of 16 years, and the child must have been in the legal custody of, and resided with, either or both of the adopting parents for at least two years. The two years of custody may occur either before or after the adoption; however, if occurring before the adoption, it must be based on a grant of legal custody by a court or government entity.
The INA does not define a "Son" or "Daughter" the same as a "Child". A son or daughter is a person who was once a child but who is now either married or over the age of 21.
Child of a U.S. Citizen. A U.S. citizen may petition for the following children:
- A child (unmarried and under 21 years of age);
- An unmarried son or daughter (over 21 years of age);
- A married son or daughter of any age.
A U.S. citizen's unmarried, minor child is considered an "immediate relative."
The United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) refer to this as the "visa number is immediately available."
If the child is lawfully present in the U.S. when USCIS approves the petition, the beneficiary-child may apply to the USCIS to adjust his/her status to lawful permanent resident in the U.S.
If the child is not lawfully present in the U.S. when USCIS approves the petition, USCIS will forward the approved petition the Department of State, which will forward the approved petition the appropriate U.S. Consulate to scheudle the immigrant visa interview.
Sons and Daughters of U.S. Citizens.
A "Son" or "Daughter" is not defined the same as a "Child." A son or daughter is a person who was once a child but who is now either married or over the age of 21.
A U.S. citizen's son or daughter is not an "immediate relative." Accordingly, immigrant visa numbers are not immediately available for a son or daughter of a U.S. citizen, and the preference category system applies to the visa.
After USCIS approves the petition it is forwarded to the Department of State's National Visa Center (NVC) where the petition (actually the case file) is held until an immigrant visa number becomes available in the Visa Bulletin.
When the immigrant visa number becomes available, the NVC notifies the petitioner-parent and the beneficiary-son/daughter to submit certain additional Forms and documents to the NVC. When the case is "documentarily prepared" the NVC forwards the file to the U.S. Consulate for the Immigrant Visa Interview.
The U.S. Consular Visa Officer makes a separate decision whether to issue the immigrant visa. If the Consular Officer approves the visa the son/daughter is issued an immigrant visa and is authorized to apply for admission to the U.S. at a port of entry. Permanent resident status is granted at the time the son/daughter is admitted into the U.S. pursuant to that immigrant visa.
Child of a Permanent Resident.
A lawful permanent resident may not petition for a married son or daughter. A permanent resident may petition only for an unmarried child; the permanent resident's child must be unmarried, but may be of any age.
The child of lawful permanent residents is not "immediate relative."
A child of a permanent resident must wait for an immigrant visa number to become available as determined by the preference category system and the priority date as listed on the Visa Bulletin.
Unmarried children of permanent residents under 21 years are in a different preference category (F-2A) than unmarried children over 21 years (F-2B).
After USCIS approves the petition, the approved petition is forwarded by the USCIS to the Department of State (DOS). The DOS will determine if an immigrant visa is available and will hold the petition until the immigrant visa is available based on the preference category and priority date as published in the Visa Bulletin. When the immigrant visa becomes available, the DOS will forward the file to the U.S. Consulate for the Consular Visa Interview. If the Consular Officer grants the immigrant visa the beneficiary may apply for admission at a U.S. port of entry.Permanent resident status is granted at the time the son/daughter is admitted into the U.S. pursuant to that immigrant visa.