Maggio+Kattar

United States citizens may petition for, or “sponsor,” their foreign national children to become permanent residents (“green card” holders) of the United States.  The immigration of a foreign national child of a United States citizen is initiated by the filing of an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (“USCIS”).  These petitions must be accompanied by documentary evidence of the existence of a parent/child relationship and evidence of the U.S. citizen sponsor’s citizenship.  Additionally, if a child is born out of wedlock and the father is United States citizen sponsor, USCIS normally requires that the father prove legitimation of the child or the existence of a bona fide father-child relationship.  Stepchildren of United States citizens qualify the same as biological children, as long as the marriage between the parents took place before the child’s 18^th birthday.  An adopted child may qualify as the child of a United States citizen if he or she meets the USCIS definition of an orphan, or if the child has lived with the sponsoring parent for a minimum two-year period in the parent’s legal custody. 

In many family-based immigration categories (“preference categories”), there are long and growing waiting lines, sometimes several years long, before the individual sponsored may become a permanent resident (“green card” holder).  The filing date of the I-130 petition establishes the “priority date,” or place in line, for an immigrant visa.  When a petition is approved, and the “priority date” becomes current (the applicable waiting time has passed), the foreign national may then apply for an immigrant visa.  This permits the foreign national to become a permanent resident of the United States (“green card” holder) after admission to the United States with the immigrant visa.  Or, if eligible, he or she may concurrently apply to adjust status to permanent resident (“green card”) while present in the United States.

The pivotal issues in determining how long the child must wait to become a permanent resident are the age and marital status of the child.  Under U.S. immigration law, children of United States citizens may either be considered “immediate relatives” or may fall within one of the Family-Based Preference categories, depending on the individual’s age and marital status.  Minor children (under 21) of United States citizens are considered to be “immediate relatives,” and thus, are not subjected to waiting lines for visa numbers to become available.  However, unmarried children over the age of 21 (Family-Based First Preference) and children who are married (Family-Based Third Preference) are subject to these waiting lines.  For children over 21 and for married children of United States citizens, the I-130 petition must be approved before the child may apply for an immigrant visa or adjustment of status to permanent resident (“green card”).  Under the Child Status Protection Act (“CSPA”), a child’s age is “locked in” at the time of filing the I-130 petition with USCIS, for any petition pending on or filed after August 6, 2002. 

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability.  When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States.   An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility.  An individual’s admissibility should also be thoroughly assessed before a visa petition is filed.  As such, we recommend that immigration counsel be consulted before a visa petition is filed.