Under U.S. immigration law, the definition of "child" holds significant importance because it provides an important legal basis for immigration benefits and protections. To understand the intricate facets of the term "child", including its definitional variations, implications, and rules governing age determination, helps parents and children achieve their goals for immigration to the U.S.
1. Definition of Child
“Child” is statutorily defined to mean an unmarried person under 21 years of age who is a biological child, adopted child, or stepchild. There are different variations defining a child for immigration purposes based on factors such as familial relationship, age, and marital status.
Biological children are born to parents in wedlock or out of wedlock. For those who are born out of wedlock to a U.S. citizen father, the law imposes an additional requirement of having a bona fide relationship between the child and their father before the father is eligible to seek immigration benefits for the child. However, for those who are born out wedlock to a U.S. citizen mother, or in wedlock to U.S. citizen parents, the law does not require such a bona fide parent-child relationship.
Adoption confers U.S. immigration benefits. The qualifying adoption must be obtained under state or foreign laws and comply with internationally mandated procedures. An adopted child is granted the same immigration benefits as a biological child if the age and residence requirements are met. To qualify as a child, an adoptive child must be adopted before the child reaches 18 years old and must have been in the legal and physical custody of the adoptive parent for at least two years or more.
Step-relationship resulting from a marriage also provides U.S. immigration benefits. To qualify for immigration benefits as a “child”, the stepchild must be under 18 years old when the marriage creating the step-relationship takes place. A stepparent can petition for their stepchild's immigration benefits if certain conditions are met, highlighting the importance of familial relationships beyond biological and adoptive ties. Similarly, a stepchild can petition for their stepparent. There is not any requirement for a meaningful, bona fide, or actual relationship between the stepparent and stepchild. As a result, in some instances, a step relationship may have advantages over a biological relationship. When a child was born to a citizen father out of wedlock, the biological father is required to demonstrate a bona fide relationship between him and his child, but the stepmother who married the father when the child is under 18 years old does not need to establish a bona fide relationship with the stepchild to petition immigration benefits for the child. When a biological parent is a lawful permanent resident and the stepparent is a U.S. citizen, the application based on the step relationship may avoid the lengthy wait for the visa number to become available and thus provide the child with a speedier process to obtain their lawful status in the U.S.
When the term “child” is used under U.S. immigration law, it carries specific meanings as defined above. Children, unmarried sons and daughters, and married sons and daughters are treated differently as three distinct groups that fall under different immigration categories. Children are generally unmarried individuals under the age of 21, eligible for specific immigration benefits such as immediate relatives or beneficiaries under the second preference category (F-2A). Lawful permanent resident parents can file visa petitions for their unmarried sons and daughters but not their married sons or daughters, while U.S. citizens can petition for both unmarried and married sons and daughters.
2. Implications of Child Definition
Family immigration based on familial relationships constitutes a significant portion of the U.S. immigration system, emphasizing the reunification of families. The parent-child relationship serves as a legal ground for immigration to the U.S. The definition of child plays a pivotal role in family-sponsored immigration; it determines eligibility for immediate relatives, preference beneficiaries, and derivative beneficiaries. For preference categories, children who can accompany or follow the principal immigrant are considered as derivative beneficiaries. Children of U.S. citizens are classified as immediate relatives, while children of lawful permanent residents are beneficiaries under the second preference category (F-2A). Immediate relatives are not subject to visa quotas; however, there exist annual quotas limiting visa numbers available to preference and derivative beneficiaries.
U.S. immigration law recognizes the vulnerability of certain children who have experienced abuse, neglect, or abandonment. Special Immigrant Juvenile Status (SIJS) provides a pathway for these children to obtain lawful permanent residency. The application process usually requires two steps. The first step is a state court proceeding for an order to declare the immigrant child is a dependent of the court and it is not in their best interest to return to the country of their nationality. The second step is filing a petition for SIJS with USCIS. Understanding the legal definition of a child is crucial in determining eligibility for SIJS, emphasizing the need for judicial findings regarding the child's best interests.
Unaccompanied minors, those entering the U.S. without a parent or legal guardian, are afforded specific protections under U.S. immigration law. Once designated as unaccompanied children, they are entitled to have USCIS adjudicate their asylum applications, instead of the immigration courts. Often time, removal proceedings are continued before immigration courts, awaiting USCIS asylum adjudication to complete. The definition of a child in this context is crucial, shaping the legal framework for the care, custody, and immigration proceedings involving these vulnerable individuals.
3. Rules on Age Determination
The age of a child is a critically important factor in the definition of child for immigration purposes. The immigration application process may take many years to complete. Often at the time when the process begins, a child is under 21 years old. However, as it progresses, the child grows older. When the visa number becomes available and the consulate or USCIS finally considers their application, the child is older than 21 years and no longer eligible for the visa. This loss of eligibility due to waiting in the application process is known as “aging out”. Immigrant children are often faced with the risk of "aging out" before completing the immigration process. Determining the age of a child can be of great importance, especially after many years of waiting, a child may not receive immigration benefits due to their age.
Generally, two rules under immigration law are employed to determine a child’s age. First, the child’s age is fixed at the time when the petition was filed by their parent. When a U.S. citizen parent petitions for their child as immediate relative, the child’s age is set at the time the immigration petition is filed, i.e., USCIS officially receives the petition. If the petition is filed when the petitioning parent is a lawful permanent resident, the child’s age is fixed at the time of the parent’s naturalization. In these circumstances, even though the child’s actual age at the time when the petition is decided is over 21 years old, the child remains eligible for the immigration benefits as long as his age was under 21 years old when the petition was filed, or when the petitioning parent naturalized.
Second, the child’s age is determined by calculating the difference between the child’s actual age at the time the visa number becomes available and the period during which the parent’s petition was pending before USCIS for adjudication. This formula, child’s age = actual age – petition pending time before USCIS, usually applies to beneficiaries under preference petitions or derivative beneficiaries. Essentially, to find out whether the child has aged out while waiting for USCIS to adjudicate the petition and for the visa number to become available, the child needs to ascertain the length of time their parent’s petition was pending before USCIS for adjudication from the time the petition was filed to the time it was granted. Then they deduct the length of time from their actual age at the time when the visa number becomes available. If the result is less than 21, they remain eligible for the immigration benefit, i.e., they have not aged out. Otherwise, they will be considered as having aged out and lost their eligibility for the benefit.
The definitional variations of child, implications, and rules to determine age are important concepts under U.S. immigration law. Understanding these concepts, recognizing how they are related, and knowing how to apply them will facilitate smooth immigration applications for parents and children alike.
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DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.