U.S. citizens and green card holders may sponsor their unmarried child of any age to obtain permanent residency and come to the United States. However, a child that is married may only be brought to the United States by a parent who is a U.S. citizen.
U.S. immigration policy favors keeping families together, especially parents and their children. A child frequently qualifies for an immigrant visa or U.S. permanent resident status through parents. It’s important to understand who the law qualifies as a “child” for visa purposes.
How Do the Immigration Authorities Define a Child?
Immigration law separates children into different categories based on two conditions: marital status and age. Generally, a child is:
- Born to parents married to each other
- Born to parents not married to each other when the child is born
- A stepchild if the marriage creating the relationship was before the child turned 18
Is There An Age Limit on Who Counts as a Child?
To be considered a “child” for visa purposes, a person must be under 21 years old. There are some special circumstances where a person can be over 21. On and after the person’s 21st birthday, U.S. immigration law calls the person an “adult son or daughter.” Adult sons and daughters sometimes qualify for visas, but they do not receive the same favored status as “children.”
Because the visa process can be lengthy, someone who qualified as a “child” at the beginning of the application process turns 21 before getting a U.S. immigrant visa. The law requires the person to be under 21 at the time the visa or green card is approved.
A law called the Child Status Protection Act helps children with this “aging out” issue. The law allows certain persons who are older than 21 to qualify for their visa or green card as if they were still “children.”
What Materials Will I Need?
The materials you must provide to the U.S. Citizen and Immigration Services vary depending on who is petitioning to bring the child. For example, if the child was born out of wedlock and never legitimated, you will need to furnish different materials than if you were married at the time of the child’s birth.
Some common documents include:
- Copy of your birth certificate
- Copy of the child’s birth certificate
- U.S. Passport, Certificate of Naturalization or Citizenship
- Legal evidence of any name changes
- Custody decrees
How Long Will It Take Before I Can Bring My Child?
If your child is unmarried and under 21, they are considered an immediate relative and do not have to be placed on a green card waitlist or be subjected to the number of green cards issued to their country.
Unfortunately, if your child is over 21, or married, they are placed on a waitlist and it may take as long as 6 years before they are issued permanent residency.
May the Child I Bring to the United States Bring a Spouse or Children with Them?
If the child you are sponsoring is married, then their spouse and children are also permitted to permanently reside in the United States. If the child you are sponsoring is unmarried, and over 21, their children are also permitted to reside in the United States.
But, if your child is unmarried, and under 21, then they would have to sponsor the child once they are in the United States and have obtained permanent residency.
When Do Married Persons No Longer Count as “Children?”
A “child” must be unmarried to be petitioned by a parent in the “children” category. Married sons and daughters of U.S. citizens sometimes qualify for a visa, but they do not have the same favored status as “children.”
Married persons will likely face a years-long wait before approval. Children who are waiting for a U.S. visa and thinking about getting married should understand the immigration consequences before getting married.
What is the 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.
Children Born in Wedlock
The least complicated parent-child relationship is when the visa applicant’s mother was married to their father at the time of birth. In this case, the person is the “child” of the mother and father until reaching age 21 or getting married, 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, and is a “child” of the father if the father has or had a parent-child relationship with the person.
A “stepchild” is someone whose natural mother or father later married someone else. Stepchildren become the “child” of the new spouse only if the stepchild had not reached the age of 18 when the 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.
A person can become someone’s “child” through a legal process called “legitimation.” Legitimation usually occurs when a father, who was not married to a child’s natural mother at the time of the child’s birth, wants to prove or assume legal responsibility for that child as his own.
To be a legitimated “child” of a parent for visa purposes, the child must be legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States. Legitimation must happen before the child reaches the age of 18 and while the child is in the legal custody of the legitimating parent or parents.
A parent-child relationship can also be formed through adoption.
A person adopted while under the age of 16 is a “child” if they have been in the legal custody of, and have resided with, the adopting parent or parents for at least two years. 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” if they are 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 brothers and sisters together, the age limit for an adopted “child” in the categories above is raised to 18 in cases where the adopting parent or parents have also adopted the person’s natural sibling.
Do I Need a Lawyer to Bring My Child into the United States?
Being separated from a child can be a very emotional experience. An experienced immigration attorney can help you determine what documents you need so that your petition to bring your child to the United States is approved as quickly as possible. An immigration lawyer also can help you file your petition and suggest methods to bring other relatives to the United States.