Adopted Children, Stepchildren, and Legitimated Children Pursuing Green Cards
Under U.S. immigration rules, a child generally must be an unmarried foreign national who is under 21 years old. An adult child or a married child may be able to get a visa, but they will face a more complicated and protracted path to a green card than a standard child. The length of the process, even for young children, can mean that a child “ages out” of the status before they get their immigrant visa. This is because immigration rules require the child to meet the definition of a child throughout the application process all the way to visa approval. In some situations, though, the Child Status Protection Act can address this issue and allow children who have aged out to retain their priority status.
You may have noticed that the definition does not require a child to be a biological child or a child who was born to married parents. This is an overview of how children in various categories can qualify as a “child” for immigration purposes.
If the child’s parents were married when they were born, a biological child will meet the definition of a “child” until they turn 21 or get married. Their status will not be affected if their parents get divorced. If the child’s parents were not married when they were born, the child will meet the definition of a “child” with regard to their mother. They will meet the definition with regard to their father if they can establish a bona fide parent-child relationship with the father. This determination will depend on the facts of the case, but generally it will involve showing that the father supported the child and played some role in the child’s life.
Sometimes a father who was not married to a child’s mother will want to establish his rights to that child after their birth. This also involves assuming the legal obligation to care for the child. Legitimation will make the child fit the definition of a “child” if it occurs before the child turns 18 and while they remain in the custody of the legitimating parent. Legitimation must meet the legal requirements of the child’s residence or domicile or of the father’s residence or domicile. (It does not matter whether either the child or the father lives in the U.S.)
A stepchild will be considered the “child” of their stepparent if their biological parent married the stepparent before the stepchild turned 18. They usually will not be considered the child of the stepparent if their biological parent divorces or separates from the stepparent, or if the biological parent or the stepparent dies. An exception applies if the stepchild can show that they have maintained a relationship with the stepparent after the divorce or separation.
Children Born Through ART
A child born to a non-genetic gestational mother through assisted reproductive technology may be considered a “child” for immigration purposes if that mother is recognized under the law of the relevant jurisdiction as the child’s legal parent at the time of their birth.
If a child was adopted when they were under 16, they will be considered a “child” for immigration purposes if the adopting parent or parents have held physical and legal custody of them for at least two years. The two-year rule does not apply if the child has been abused by an adopting parent or a family member of the parent who lives in the same household. If the adopting parent adopts two biological siblings, only one sibling must be under 16, while the other sibling must be under 18.
If an orphan is under 16 when the adopting parent or parents file the immigrant visa petition for them as an immediate relative, the orphan generally will be considered a “child” under immigration laws. The same rule about siblings applies in this situation.
Finally, a foreign national child may be considered a “child” if they were adopted in a foreign nation that signed the Hague Convention or if they are coming to the U.S. from a signatory nation. They must be under the age of 16 when the adopting parent or parents file the immigrant visa petition for them as an immediate relative.