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A Live Chat With an Immigration Lawyer About Child Visas

Maggie Riley, Boundless immigration lawyer and policy analyst, answers questions about the immigration process

Feb 10, 2022

YouTube video

Hi, everyone, and welcome to today’s Boundless Immigration Live Q&A about immigrating children to the United States. My name is Maggie Riley. I’m the immigration law and policy analyst here at Boundless Immigration, and I wanted to spend some time today providing some general information about immigrating your children, either for green cards or on K2 visas, into the United States.

We received a couple of questions from you all over the last day or two, so we’re going to try to address some of those while also providing general information about bringing your kids to the country, be they your natural-born children, adopted children, or stepchildren.

We’re going to be talking a lot about the green card process for your children as far as immigrant visas are concerned, as well K2 visas for children who are coming through a fiancé visa application. I am going to steer clear of derivative and acquired citizenship questions.

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Before we jump in, I do want to give a little bit of a caveat. So, my name is Maggie Riley. I work at Boundless Immigration, and I am a licensed immigration attorney; however, I don’t represent private clients, individuals, or families. I just work for Boundless Immigration. So that means that the information I’m providing is general information, and it is not to be taken as legal advice. I can’t comment on anybody’s specific case or situation. I can’t give advice on that, but I can give general information about how the system.

In some situations, it is truly going to be best to hire an immigration attorney, especially if you’re dealing with questions about derived or acquired citizenship, because that’s when we’re going to start getting into trickier, more nuanced areas of law.

So, all that being said, please keep in mind this is general information. This is not personal legal advice. And let’s go ahead and get started.

What are some ways that children can gain entry into the U.S.?

The definition of child in U.S. immigration is not necessarily the definition that it is for the rest of us. Children can gain green cards or entry into the country through a couple of different methods. Sometimes it’s going to be through an immigrant visa. Sometimes it could be a direct sponsorship by a U.S. citizen parent. Sometimes it’s a sponsorship by a stepparent through their own biological parent.

There is also the opportunity for some folks to come in as derivative beneficiaries. So, we got a lot of nitty-gritty terms to get into, and I will try and break this down a bit for us.

So, starting with green cards, especially marriage-based green cards, children can gain a green card as a derivative beneficiary through a parent’s application with USCIS. So, that means that the parent files an I-130 or I-485, or the child can go through the immigrant visa process at the consulate, and that’s filing an I-130 and a DS-260. The parent in this situation is the lead beneficiary.

So, you have your sponsor, the lead beneficiary, and then the derivative beneficiary, who is the child of the lead beneficiary. However, only green card holders can sponsor a family member and the derivative beneficiary on the same I-130. What that means is, if you are a U.S. citizen, and you are sponsoring a spouse and your spouse’s child, you have to file a separate I-130 for the spouse and for the child.

A sponsor who is a green card holder or a legal permanent resident (LPR) only has to file one I-130, and that’s the I-130 for the spouse who’s the lead beneficiary. The child of the beneficiary can be included on the one I-130, and they sort of ride along on that petition. So, again, if you are a green card holder, and you’re petitioning for your partner and your partner’s child, one I-130 will rule them all.

If you are a US citizen, and you’re petitioning for your partner and your partner’s child, you’re going to have to file an I-130 for each person.

What is a child, according to immigration law?

This is where things get a little bit funny. For most of us, a child means something not too specific, but in immigration law, there are very specific rules about it.

In immigration law, in the United States, a child is someone who is unmarried and under age 21. Once your 21st birthday hits, you are no longer a child for immigration purposes.

This is an additional piece of information: in addition to being unmarried and under 21, the child was born either in wedlock, which means that your parents were married at the time you were born, or you’re born out of wedlock, which means your parents were not married.

That doesn’t necessarily change the definition. It’s still aged 21 and still unmarried. It just changes some of the parameters about when and how you may be eligible for other immigration benefits. I just wanted to make sure I touched on that.

How do you petition for a stepchild?

So, as far as stepchildren are concerned, U.S. citizens and green card holders can petition for their stepchild to immigrate much the same as they can for a biological child. They can also petition for their child to adjust status inside the United States, which is filing the I-485 to get a green card. The caveat here is that the child’s parents, (birth and stepparent), must have been married before the child turned 18.

What is the Child Status Protection Act? (CSPA)

I mentioned there are some interesting nuances in immigration definitions, and this is one of them where it changes a little bit depending on the kind of application you’re filing. In some cases, there’s a law called CSPA, which is the Child Status Protection Act, and this can freeze a child’s age in place to preserve the age that they were before that 21st birthday.

So many of you are probably very aware that there are huge backlogs at USCIS and at the Department of State for immigrant visas. This means that often, an application is filed on behalf of a child, but the child has aged out by the time the application is actually processed and adjudicated. And because of that, the child is no longer eligible to immigrate as a child, and they have to go into a longer wait preference category.

The Child Status Protection Act freezes that child’s age in place for purposes of the specific application, and so generally, that age is the date the I-130 or the I-360 was filed. With USCIS, the child does have to remain unmarried to qualify.

So, either aging out or getting married is going to end that child status and is going to move the child into a new category in terms of how they have to go about gaining their green card.

Is there a minimum age or specific age a child needs to be qualified for certain statuses?

For certain categories, yes.

As we’ve just talked about, there are specific definitions in U.S. immigration law that tell us who counts as a child for various applications. Generally, it’s going to be someone unmarried and under age 21. On the other hand, there’s no minimum age for a child to have an application filed on their behalf.

If you are married, you have had a child, and you’d like to immigrate your child, you can file that paperwork as soon as you have the child’s birth certificate in hand. Once you have the documentation showing your relationship with the child and that the child exists, you can go ahead and begin that process right away. You don’t have to wait for the child to reach a minimum age.

But as I noted before, there is a cut-off age for children. Generally, you’re going to want to act sooner rather than later because there can be complications if you wait too long and the child is unable to go through the shorter process and has to go into a preference category later in life.

When you reach a certain age, are there still fees to apply, or is it free?

In general, there are still going to be fees to apply, but they’re going to be somewhat reduced for certain situations. The most obvious fee changes that you’re going to see is actually the biometrics fee.

Children 14-years-old and younger generally do not have to have biometrics taken. Biometrics are photographs that are used to confirm the identity of someone, often by using biometric measurements, such as the distance from the chin to the ear, distance from the eye to the ear, et cetera, as well as taking fingerprints.

Children age 14 and under are still growing quite quickly, and so there’s a limited utility to these biometric measurements, and so they often aren’t taken. For that reason, there’s not a fee. There is also a reduced filing fee for the I-485, which is the green card application form in the United States. The fee for that is generally going to be $750, so it’s a little less than half of the normal filing.

The caveat there is that only qualifies if the child is also filing with at least one parent. If the child is filing an I-485 alone as a standalone, it will be the full fee of $1440. Similar to how you often see a child ride along on an I-130 petition, sometimes that also means that they’re able to avoid that additional fee.

So, in the case of an LPR green card holder parent who is sponsoring a child, if the child is able to be a derivative beneficiary on the parent’s petition, they are not going to need that separate petition. Therefore, there’s not an additional fee for that petition. It’s not that the fee is waived; it’s that the whole petition in that specific situation is no longer required because they’re bundled with the parent.

So as far as fees, there is no fee generally for biometrics for children, and there is a reduced fee if the child is filing with a parent.

If you’re ever curious about specific fees, check out the G-1055. It’s on the USCI website. It lists all of the fees for the various forms that are filed, including biometrics and different fee requirements for children under 14. I recommend you take a look at that if you do have specific questions about petitions or applications that you are trying to file for your family.

Is it possible for a child to immigrate to the United States without a parent? (Follow to join benefits)

There are situations when this is possible and, theoretically, it can be done, but there are going to be a lot of caveats in a situation like this.

It’s going to depend on a few different factors. It’s going to depend on the laws of the child’s home country. There are international conventions, as well as laws in places, in other nations to prevent parental abduction or to prevent loss or exploitation of children.

So, for example, to prevent one parent from absconding with a child in the middle of the night and moving out of the country, never to be seen again, certain countries won’t issue a passport unless it is clear that both parents have given permission for this child to exit the country.

Convention, travel documents, passports, things like this frequently do require a showing that the custodial parent is the one making the request on behalf of the child. There are often rules about protecting the child, to make sure that the child is being taken out of the country by a parent who has protective custody. You’re going to have to look at the rules in the country from which you’re coming.

In general, anytime you’re dealing with something like that, it’s very advisable to speak with a knowledgeable professional, an immigration attorney, or somebody like that to make sure that you don’t run into something unexpected when you try to exit the country or when you arrive in the United States.

There are also a few issues in terms of protecting the left behind rights of the parent, so is that something thing else to consider as well. You may be familiar, in the United States, there is often consideration given in divorce proceedings. For example, where is the child going to live? Is the child being taken out of the state? Away from the parent? If you think about it in that context, then you’re going to see some similarities to how these issues are thought about in other countries. So, it’s just something to keep in mind.

Another issue that can come up, in terms of sending the child alone, is that pertaining to unaccompanied minors. For those of you who have seen stories in the news about children arriving, for example, at the Southern border, often the case there is that they are sent without a pre-filed petition, and so they fall under a different process in the immigration system, separate from what we’re talking about here. But I did want to mention that there is that program as well.

Once your child has received their green card, what happens next? When can they naturalize?

Generally, an immediate relative of a U.S. citizen can naturalize three years after becoming a green card holder so long as the relationship that was the basis of that green card is still in existence.

So, if you got your green card based on marriage to a U.S. citizen, you have to still be married and living in marital harmony with that U.S. citizen at the end of those three years. At the end of three years, if that is the case, and you otherwise are eligible, you can apply for your naturalization and apply to become a citizen.

In general, if your child receives their green card as part of your petition, they are able to ride along with you. What this will mean is that the child, in general, will automatically gain citizenship under the Child Citizenship Act if the child is still under age 18 on the date that the parent naturalizes.

So, let’s say, for example, I’m an Australian citizen, I’m married an American, I immigrate my daughter with me to the United States, and we both become green card holders based on my marriage to an American citizen. After three years, I qualify for citizenship because I’m still married to my American spouse. If I am approved on the date that I take my oath ceremony—I raise my hand and I swear my oath of allegiance to the United States—if my child is still under age 18, then they also become a citizen.

However, in the situation where the child does not naturalize along with the parent, for example, if the child remained in the home country and the parent came to the U.S. as a green card holder or the child waited and is over age 18, at the time that they are seeking citizenship, they are going to have to file a standalone naturalization application. In that case, they usually have to have been a green card holder for five years on the date that they file the application.

I know that’s a lot of information, but if it’s three years for the spouse and the child. If the child is under 18, they can ride along, otherwise, they’ll have to wait five years.

I did the fiancé visa before and was also a co-sponsor. I want to do the fiancé visa again, but do I have to add the people I co-sponsor on the affidavit?

So that one is a little bit more about sponsorship questions related to the I-134, which is the affidavit of support that is used for the K1 visa, which is the fiancé visa referred to here. In general, on any affidavit of support, including the I-864 for the DS-260 or the I-485, you do need to list anyone for whom you have co-sponsored in the past up until the point they’ve become a United States citizen.

For example, if you were previously married and you sponsored someone for a green card and then got divorced, but they are not yet a United States citizen, technically, the I-864 contract is still in effect, so you do still have to list that person when you’re filing your new petitions. It’s something to keep in mind. Honesty is always the best policy, so take a really careful look at the instructions that USCIS provides with either the I-134 for the K1 visa or the I-864 for green card applications. They are very long and very dry, but they will give you a clear idea of what the parameters are.

In general, you do need to disclose prior people that you’ve sponsored or co-sponsored.

Does the child have to have the same last name as the parent petitioning for a green card?

No. In general, the most important thing is to show that there is what’s called a “bona fide familial relationship,” and that can be shown in a number of ways.

Often, it’s shown by which parents’ names are listed on the birth certificate. They can be shown through DNA testing and then what’s called secondary evidence. So, this could be evidence, such as baptism records listing the parents’ names, other religious records that should reflect both parents, school enrollment documents frequently reflect both parents, and so on. In some cultures, there is not a sort of familial name that is a through-line through generations. In the sort of more English or West American, we have this sort of family last names.

Other cultures take sort of names from paternal and maternal, but some don’t at all. In general, there’s also the option that people can change their names. As long as the government can see that there is a bona fide, true family relationship between your child and yourself, or your stepchild and yourself, then that’s really what’s going to control. It’s not necessarily going to be about the name that can help show a piece of evidence, but its probative value is definitely outweighed by other evidence you can show.

What ages are considered for a child?

A child is generally someone who is unmarried and under age 21 for US immigration purposes. There are some situations in which 18 can be the cut-off, but in general, 21 and under and unmarried are the key points for a child in immigration.

Once they have to file their own application, that is generally going to happen if they have aged out for some reason or if they have waited to naturalize. For example, if a parent naturalizes and the child is over 18 at the time, they’ll have to file their own application.

USCIS has a few pages that have relatively helpful, very in-depth information about the definition of a child. It can be a lot to peruse through, but it is often good to get this information straight from the horse’s mouth. If you are curious for some extra details, the USCIS Policy Manual has a page fully dedicated to the definition of a child, which has a lot of information also related to adopted children, which can get a little tricky as well. So, I did just want to mention that in case anyone was curious about where they can go get more of the official information.

Can a conditional green card holder file for a child of 21 and two kids below 18 years?

So, in general, once the child has reached age 21, they are no longer a child for immigration purposes, and they’re going to move into one of the preference categories that I had mentioned earlier in our discussion. So those are categories like F2A, for example. So, there’ll be a second preference, third preference, fourth preference, and so on. And this can include not just adult children, but also parents and siblings and so on.

There is no reason that a conditional green card holder can’t file a petition for a child who’s aged 21. It just means that the 21-year-old child is going to be processed probably at a different rate than the other under 18 children because they’re going to fall into a different preference category.

The Department of State releases visa bulletins that are going to give information about how long those waits look but depending on the category, they can be quite long. The F2A category, however, has been current for nearly two years, and so depending on the category, the wait might not be as bad as it could be for kids below 18 years. They can also be filed if there are questions about the child potentially aging out because they are close to turning 18, or even if the child is maybe not that close to turning 18, maybe they’re 16 or 17 years old.

It’s important to keep in mind that USCIS is suffering from crisis-level backlogs. We’re seeing applications processing that used to take a couple of months are now taking well over a year. In some parts of the country, green card applications are taking two, maybe three years. New York City has huge wait times.

So, if there’s a concern that your child is going to age out before an application is actually approved, I highly recommend that you seek the advice of an immigration attorney who can provide the best, most concrete advice on how you should handle your situation. Standalone applications are more expensive and have greater waiting processing times. It can really cause a lot of complications.

I highly recommend that, if you’re feeling unsure or if you’re concerned that your child may age out, that you do consult someone like an AAA attorney in your area who can give you that information. You need to take care of your family as best as possible.

If you do think of any additional questions, or you are looking for more information about getting your green card, applying for a fiancé visa, or bringing your children into the United States, the Boundless website has a huge amount of information.

And, of course, we are always standing ready and waiting to answer questions and help folks with this process. Please feel free to reach out to us through our social media. You can hit us up here on Instagram, on Twitter, or on Facebook. Visit [email protected], sign up for the Boundless newsletter “BIT” and stay informed. We are always here to provide information and I wish everybody the best.

Have a wonderful day, have a great weekend, and take care out there, everybody.

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