The U.S. immigration policy promotes maintaining intact families, particularly between parents and their offspring. It’s common for a child to qualify for an immigrant visa or permanent resident status through their parents, therefore it’s crucial to know who the law considers to be a “child” for visa reasons. For the purposes of obtaining a visa, a person must (generally) be younger than 21 years old and unmarried to qualify as a “child.” In accordance with U.S. immigration law, a person is referred to as a “adult son or daughter” on and after their 21st birthday. Sons and daughters who are adults occasionally qualify for visas, but they do not enjoy the same benefits as “children.” It occasionally occurs that a person who was eligible for a “child” visa at the start of the application process turns 21 before receiving a U.S. immigrant visa because the visa process might take a long time. This “aging out” can cause issues because the legislation stipulates that the applicant must be younger than 21 when the visa or green card is accepted.
The Child Status Protection Act, a piece of legislation, aids children in dealing with this “aging out” issue. It enables certain adults over 21 to be granted a visa or green card as though they were still “children.” The Child Status Protection Act (CSPA) helps Immediate Relatives of U.S. Citizens and the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries for more information on how it operates.
Married Persons No Longer Count as “Children”
A “child” who is petitioned by a parent under the category for children must always be unmarried. Married sons and daughters of American citizens may occasionally be eligible for a visa, but they do not enjoy the same benefits as “children,” and they will probably have to wait years for their application to be approved. Children who are awaiting a U.S. visa and considering marriage should, therefore, grasp the immigration repercussions before getting married.
Legally Required Relationship Between “Child and Parent or Parents”
U.S. immigration law defines children more broadly than merely biological children born to married parents, so be sure to take a close look at the details of the law.
Legitimated Children
Through a legal procedure known as “legitimation,” a person might legally become someone else’s “child.” This typically happens when a father who wasn’t legally wed to the child’s mother at the time of the child’s birth tries to establish or claim legal custody of the child as his own.
For visa reasons, a child must be recognized as a “child” by the law of their place of residence or domicile, or by the law of the father’s place of residence or domicile, whether that be inside or outside the United States. Additionally, the legitimation must occur when the child is in the legal possession of the legitimating parent or guardian and before the child turns 18 years old.
Children Born in Wedlock
The least complicated parent-child relationship is when the potential visa applicant’s mother was married to his or her father at the time of birth. In this case, the person is the “child” of the mother and of the father until reaching age 21 or getting married. This is true even if the mother and father divorce after the child is born.
Children Born Out of Wedlock
If the natural father and natural mother were not married at the time of birth, the person is a “child” of the natural mother automatically, and is a “child” of the father if the father has or had a bona fide parent-child relationship with the person.
Stepchildren
A “stepchild”—someone whose natural mother or father later married someone else—is the “child” of the new spouse only if the stepchild had not reached the age of 18 when that new marriage occurred.
If the new marriage ends in death, divorce, or separation, the person is still the “child” of the natural parent, but is no longer the “child” of the stepparent unless they have an ongoing relationship.
Adopted Children
Adoption can also lead to the growth of a parent-child bond in a number of ways.
A person who has been adopted while under the age of 16 is considered to be a “child” if they have lived with their adoptive parents for at least two years and have been in their legal custody. (There is no two-year requirement if the child has been battered or subject to extreme cruelty by the adopting U.S. parent or by a family member of the adopting parent residing in the same U.S. household.) An orphan can become an adopted “child” under certain circumstances if he or she is under the age of 16 at the time the adopting parent or parents file an immigrant visa petition for him or her as an “immediate relative.”
To help keep adoptable brothers and sisters together, the age limit for an adopted “child” in the two categories above is raised to 18 in a case where the adopting parent or parents have also adopted the person’s natural sibling.
If a person is not yet the age of 16 when the adopting parent or parents file an immigrant visa petition for them as a “immediate relative,” that person may, in some cases, become an adopted “child” who was adopted in a foreign country that is a party to the “Hague Convention” on adoption or who is emigrating from that country to be adopted in the U.S.
For immigration to the United States, the person is now considered to be a “child” of the adopting parent or parents and is no longer considered to be a “child” of any natural parent. Attorney Raju Mahajan & Associates has been trying to assist individuals in immigration or green card related problems. Our immigration law office provides numerous legal services, including online consultations, which you can have access from any part of the world.
