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How to Petition a Child

Please note that for immigration purposes, the terms “child” and “son or daughter” are different and have very specific definitions.

The immigration law defines a child as an unmarried person under the age of 21 (a minor) who is:

  • A child born to parents who are married to each other (born in wedlock);
  • A stepchild if the marriage creating the step-relationship took place before the child reached the age of 18;
  • A child born out of wedlock (the parents were not married at the time the child was born). Note: If the father is filing the petition, proof of a bona fide (real and established) relationship with the father must be supplied;
  • An adopted child if the child was adopted before the age of 16 and has lived with the adoptive parent(s) in their legal custody for at least two years;
  • An orphan under the age of 16 when an adoptive or prospective adoptive parent files a visa petition on his or her behalf, who has been adopted abroad by a U.S. citizen or is coming to the U.S. for adoption by a U.S. citizen; or
  • A child adopted who is under the age of 18 and the natural sibling of an orphan or adopted child under the age of 16, if adopted with or after the sibling.   The child must also otherwise fit the definition of orphan or adopted child.

Definition of a Son or Daughter

The immigration law defines a son or daughter as a person who was once a child but who is now either married or over the age of 21.

Overview of Immigration Process

There is a three-step process for a child or son or daughter to become a lawful permanent resident, unless he/she is already in the U.S. in lawful status (see Combined Processing below):

  • The USCIS must approve an immigrant visa petition (Form I-130, Petition for Alien Relative) filed on behalf of the foreign child, son or daughter.
  • An immigrant visa must be available based on the date the immigrant visa application was filed.
  • If the child, son or daughter is outside the U.S. when the visa petition is approved and when an immigrant visa number (if required) becomes available, the child will be notified by the Department of State’s National Visa Center to complete the processing for an immigrant visa. If the child, son or daughter is legally inside the U.S. when the visa petition is approved and when an immigrant visa number (if required) becomes available, he or she may apply for adjustment of status to that of a lawful permanent resident with the appropriate USCIS Regional Service Center.

Combined Processing for Children Already in the U.S.

Since an unmarried child under the age of 21 is immediately eligible for an immigrant visa, the USCIS allows for Combined Processing this category. This means that if the child is legally in the U.S. (through a lawful admission or parole) at the time of filing the Form I-130, Petition for Alien Relative, he/she may also file for adjustment of status at the same time. Combined Processing is only available to beneficiaries/applicants who are in the U.S.

Who is Eligible to Sponsor a Child?

A U.S. citizen may petition for:

  • A child (unmarried and under 21 years of age)
  • An unmarried son or daughter (over 21 years of age)
  • A married son or daughter of any age

NOTE: A U.S. Citizen’s unmarried, minor child is considered an immediate relative, does not need a visa number, and is eligible to receive an immigrant visa immediately. Otherwise, sons and daughters of U.S. citizens will be eligible for a visa when their priority date is listed on the Visa Bulletin.

A lawful permanent resident may petition for:

  • A child (unmarried and under 21 years of age)
  • An unmarried son or daughter (over 21 years of age)

A lawful permanent resident may not petition for a married son or daughter.

NOTE: If a lawful permanent resident had children before becoming a permanent resident and did not immigrate as an immediate relative of a U.S. citizen, his/her unmarried, minor children may be eligible to receive following-to-join benefits. This means that a separate Form I-130 for the children is not required, and the children will not have to wait any extra time for a visa number to become available.

Filing the Petition

The form to petition for a child, son, or daughter is the Form I-130, Petition for Alien Relative. The Form I-130 is submitted to the appropriate USCIS Regional Service Center along with the filing fee and evidence of the Petitioner’s U.S. Citizenship or Lawful Permanent Residence status and evidence of the parent-child relationship. NOTE: If the petitioner is the father, evidence that the father was married to the mother at the time of birth must be submitted (i.e. birth certificate). If the couple was not married, evidence that the father had a bona fide relationship with the child, son or daughter must be submitted.

The form to petition for an orphan is Form I-600 and the form to use for advance processing is Form I-600A.

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