When preparing an Adjustment of Status application it’s also necessary to list your children on Form I-485, Application to Register Permanent Residence or Adjust Status.
But each child will need to have a separate I-485 application if they are immigrating with you. Even if the child was listed as a derivative applicant on an approved visa petition (such as Form I-130 or Form I-140), each applicant for permanent residence (green card) must file a separate Form I-485, Application to Adjust Status.
U.S. Citizenship and Immigration Services (USCIS) has a specific definition for children. Therefore, it’s important that you understand the who qualifies as a child for the purposes of adjusting status.
Children on Your Form I-485 Application
When preparing Form I-485, Application to Adjust Status, the parent will list all of his or her sons and daughters in Part 6, regardless of whether they are:
- Alive, missing, or dead;
- Born in other countries or in the United States;
- Under 18 years or adults;
- Married or unmarried;
- Living with you or elsewhere;
- Stepsons or stepdaughters or legally adopted or
- Born when you were not married.
You will also be asked if “this child is applying with you.” However, answering “Yes” will not grant your child immigration benefits. Each child must be eligible and file a separate application.
Who is Considered to be a “Child”
For the purposes of the immigration process, USCIS considers a child to be an unmarried son or daughter under the age of 21 that is also any of the following:
- A genetic child born in wedlock
- A genetic child born out of wedlock:
- If the mother is petitioning, no legitimation is required.
- If the father is petitioning, legitimation is required in accordance with the laws of the father or child’s place of residence.
- If the father is petitioning and the relationship is not legitimated under applicable laws, a bona fide parent-child relationship must be shown to have existed prior to the child’s 21st birthday and while the child was unmarried.
- A child born through Assisted Reproductive Technology (ART) to a non-genetic gestational mother who is recognized under the law of the relevant jurisdiction as the child’s legal parent at the time of the child’s birth.
- A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18
- An adopted child if the child was adopted prior to age 16 (one exception is if siblings are adopted, as long as one was under 16, the other could be older than 16 but younger than 18), AND the adopted child has resided in the legal and physical custody of the adoptive parent for 2 years prior to filing (the legal and physical custody do not have to be the same time period, but each must be met for 2 years) However, most adoption-based immigration occurs through the orphan intercountry or Hague processes.
Children in Family-Based Immigration
Like an adult, a child can generally adjust status if he or she is physically present in the United States through a lawful entry and a visa is immediately available.
The child of a U.S. citizen may concurrently file a Form I-130, Petition for Alien Relative, with Form I-485 because a visa is always available to immediate relatives. The child of a lawful permanent resident may have to wait until the Form I-130 is approved and current. Family-preference categories generally have a wait time due to a limited number of visas each year. Likewise, children who are derivative applicants will require that the principal’s petition is approved and current.
|If you are a…||Then|
|U.S. citizen petitioning for your child (unmarried and under 21)||Your child may file Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time that you file Form I-130.|
|U.S. citizen petitioning for your adult son or daughter (married and/or 21 or over)||You file Form I-130. Your son or daughter files Form I-485 when a visa number becomes available.|
|U.S. citizen petitioning for your sibling or adult son or daughter who also has a child||You file Form I-130 for your sibling, adult son, or adult daughter as the principal beneficiary. Include the principal’s child as a derivative beneficiary. All may file Form I-485 when a visa becomes available.|
|Permanent resident (green card holder) petitioning for your child, son, or daughter||You file Form I-130. Your child, son, or daughter may file Form I-485 when a visa number becomes available.|
|Permanent resident (green card holder) petitioning for your adult son or daughter who also has a child||You file Form I-130 for your adult son or daughter as the principal beneficiary. Include the principal’s child as a derivative beneficiary. All may file Form I-485 when a visa becomes available.|
If the beneficiary is not physically present in the United States, he or she must apply for a green card through consular processing.