U.S. citizens and lawful permanent residents can both help their children obtain permanent resident status (green card) in the United States. The process starts by filing Form I-130, Petition for Alien Relative.
However, before beginning the process, the petitioner should understand the basics of helping a child immigrate through the family-based immigration process. The child’s age, type of relationship and several other factors play a role in determining eligibility.
Who Qualifies as a Child?
Immigration law defines a child as an individual who is under the age of 21. On the other hand, any person age 21 or older is considered a son or daughter to the parent. These are important distinctions as they affect eligibility and priority in the family-based process. In addition to biological relationships, parents may be able to petition step children and adopted children. Children born out of wedlock may also be eligible. Specific rules apply to each, and it can get complicated.
U.S. Citizen Petition for Child
A U.S. citizen is able to file the I-130 for virtually any child. The child can be any age, married or unmarried. A U.S. citizen can file Form I-130 for:
- Children (unmarried and under 21)
- Unmarried sons and daughters (21 or over)
- Married sons and daughters (any age)
Unmarried children (under 21 years of age) of a U.S. citizen qualify as immediate relatives. This is significant because immigration law does not limit the number of immediate relative visas (green cards) issued each year. The process is relatively quick. Married children, as well as sons and daughters (21 or older), qualify in family preference categories. They are still eligible for a green card, but it’s likely they’ll have to wait much longer.
Each immediate relative beneficiary must have his or her own I-130 petition. So a U.S. citizen who files Form I-130 for a spouse must also file a separate I-130 petition for any children that intend to immigrate with the parent.
On the other hand, derivative beneficiaries do not require separate petitions. For example, a U.S. citizen petitions his foreign citizen adult son. The son’s wife and child may be included on the same I-130 as derivative beneficiaries. When the I-130 is approved and current for the principal beneficiary (the son), the wife and children can apply for green cards at the same time.
Permanent Resident Petition for Child
Lawful permanent residents can only file Form I-130 for an unmarried son or daughter (any age). Immigration law assigns these relationships to the family preference categories. There is no visa category for married children, sons or daughters of permanent residents.
If an unmarried son or daughter marries before the permanent resident becomes a U.S. citizen, USCIS will automatically revoke any pending Form I-130 petition filed for that son or daughter.
Petition for Step Children
Petitioning a step child is fairly straight forward. A parent may petition a step child as long as the marriage creating the step relationship occurred before the child turned 18 years of age. This is a common scenario for a U.S. petitioner who is helping a spouse immigrate to the United States. If the foreign citizen spouse has a child, the petitioner can also petition the step child as long as:
- The marriage to the child’s mother occurred before the child’s 18th birthday; and
- The child continues to be under the age of 21 at the time of filing Form I-130.
Petition for Adopted Children
Adoptive relationships get much more complicated. Generally, a petitioner can only file Form I-130 on behalf of an adopted child if the child was adopted prior to age 16. There are exceptions to this rule. What’s more, most adoption-based immigration occurs through the orphan intercountry or Hague processes. These are complicated and specialized areas of immigration law, and we recommend that you seek advice about your specific situation from an experienced immigration attorney.
Documents to Submit with Form I-130
The list of documents that you must submit to USCIS varies significantly based on your citizenship, the child’s age and type of relationship (biological, step, adoptive). Read the USCIS instructions, consult with an attorney, or consider using CitizenPath. CitizenPath’s I-130 preparation software can help you prepare the I-130 petition accurately and provide a detailed list of items to submit based on your answers in the petition.