children in immigration

Children in Immigration

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You are a U.S. citizen and you want to apply to adjust the status of your non-US citizen child.  In immigration law a “child” may be defined differently than what we would normally think of as a child. The Immigration and Nationality Act (INA) defines “child” for us. 

INA 101(b) defines a “child” as an unmarried person under 21.  If the person is over age 21 then s/he is referred to as the “unmarried son or daughter over 21.”

The INA does not distinguish between “legitimated” and “unlegitimated” children. However, children born “out of wedlock” are treated differently than children born “in wedlock.” A parent can go through the legal process to have the child legitimated but it must be completed before the child turns 18 years old.

For a stepchild to qualify for an adjustment of status based on a family relationship, the parents must have married before the child turned 18.  Nevertheless,  the stepchild-stepparent relationship continues even if the natural parent dies.

An adopted child must have been adopted before age 16.  The parent must have had legal custody of the adopted child for at least two years. When dealing with an adopted child, the attorney must delve into the adoption thoroughly. Once a child has been adopted, the biological parents cannot get an immigration benefit for that child.