Children

The process for petitioning for a child is based on:

• The status of the petitioning parent as a U.S. citizen or as a permanent resident;
• Proving the underlying qualifying parent-child relationship, which includes that the beneficiary-child meets the INA definition of a "child"

The Immigration and Nationality Act (INA) definition of a "child" is an unmarried person under the age of 21 (a minor), and includes:

• "Unmarried" - A beneficiary applying as "unmarried" must be 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); or,
• "Orphan Child" - The child must be under the age of 16 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; or,
• "Stepchild "- provided the child was under18 when the marriage creating the stepchild relationship occurred. The stepchild relationship can outlast the marriage that created it; or,
• "Adopted Child" - The child must be adopted while under the age of 16, 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.

A "Child" is defined as:

• A child born to parents who are married to each other (born in wedlock);
• A stepchild if the marriage creating the step-relationship took place before the child reached the age of 18;
• A child born out of wedlock (the parents were not married at the time the child was born);
• An adopted child if the child was adopted before the age of 16 and has lived with the adoptive parent(s) in their legal custody for at least two years;
• An orphan under the age of 16 when an adoptive or prospective adoptive parent files a visa petition on his or her behalf, who has been adopted abroad by a U.S. citizen or is coming to the U.S. for adoption by a U.S. citizen;
• A child adopted who is under the age of 18 and the natural sibling of an orphan or adopted child under the age of 16, if adopted with or after the sibling. The child must also otherwise fit the definition of orphan or adopted child.

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.

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 advantage of qualifying as an "immediate relative" of a U.S. citizen is that there is no numerical limitation or backlog for sponsorship. 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 schedule 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 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.

After USCIS approves the petition it is forwarded to the National Visa Center (NVC) where the petition (actually the case file) stays until an immigrant visa number becomes available as determined by the priority date is listed on the Visa Bulletin.

When the immigrant visa number becomes available NVC notifies the petitioner-parent and the beneficiary-son/daughter are notified to submit certain documents to the NVC, including an Affidavit of Support. If the Affidavit of Support is adequate the NVC forwards the approved petition to the appropriate U.S. consulate and the spouse is scheduled for an immigrant visa interview.

The U.S. consulate 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.

Child of Permanent Residents
A lawful permanent resident may not petition for a married son or daughter. A permanent resident may petition only for unmarried children.

Children of lawful permanent residents are not "immediate relatives" and must wait for an immigrant visa number to become available as determined by the preference category and priority date is listed on the Visa Bulletin.

Unmarried children of permanent residents under 21 years are in a different preference category than unmarried children over 21 years.

After USCIS approves the petition the approved petition is forwarded by the USCIS to the Department of State. 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 published in Visa Bulletin. When the immigrant visa becomes available the DOS will forward the file to the U.S. consulate for the visa interview. If the consular officer grants the immigrant visa the beneficiary may apply for admission at a U.S. port of entry.