Family-Based Petition via Parent

Route

Immigrant Visas

Description

A U.S. citizen or lawful permanent resident may be eligible to file a petition on behalf of a Migrant child residing in the United States or abroad. A U.S. citizen or lawful permanent resident parent may petition for minor children (under the age of 21), adult sons/daughters (over the age of 21), adopted children as well as stepchildren. As a U.S. citizen parent, sponsorship is extended to married children whereas is not permitted to lawful permanent resident parents. Additionally, it is important to note that the petitioner’s legal status as well as the marital status and age of the Migrant child are determining factors of a multi-step process and immigration pathway.

Any petition filed on behalf on a Migrant child should establish a Parent-Child relationship in order to qualify eligibility. In circumstances where the Migrant child was born out of wedlock, the mother will directly qualify as a petitioning parent. However, the father should establish support and involvement in the Migrant child’s life prior to turning 21 years of age. If the petition is based on adoption, eligibility will be based on the adoption occurring before the Migrant child turned 16 years of age. Additionally, evidence must be provided to establish that Migrant child lived and was under the custody of the petitioning parent for at least 2 years before/after adoption. For petitions filed on behalf of stepchildren, eligibility is based on the biological parent and stepparent marriage occurring while the Migrant child was under the age of 18 years old. All supporting documentation should be filed along the initial petition to establish a Parent-Child relationship in accordance to the law.

In the situation where the parent is a U.S. citizen and the migrant child (under the age of 21 years old) is legally in the United States and is not found to be inadmissible, the Migrant child may be eligible to file for adjustment of status concurrently with the petition. All filings are processed by U.S. Citizenship and Immigration Services (USCIS) and it is highly important that USCIS processes receipt of petition before the Migrant child turns 21 years of age. The U.S. citizen parent as well as the Migrant child may be required to attend an interview to obtain adjudication on the petition and adjustment of status resulting in a granted green card.

In an unfortunate situation, where the Migrant child ages out (turns 21 years old), the U.S. citizen or lawful permanent parent will only be eligible to file a petition with USCIS to initiate the case. The initial documentation submitted must verify the legitimacy of the relationship between the petitioning parent and the Migrant child either by birth, adoption, or parents’ marriages. Once USCIS processes the petition, a receipt notice will be mailed to the petitioning parent’s address of record. It is very important to safely retain record of this notice as it includes important information regarding receipt number, priority date, class request, etc. Post-petition approval, the case will remain on standby until a visa becomes available for the assigned priority category. Unfortunately, the Migrant adult son/daughter may incur a significant wait time before becoming eligible for adjustment of status in the United States or an immigrant visa at a U.S. embassy or consular office abroad.

At the consular processing stage, additional forms and documentation filings may be required in order for an interview to be scheduled at a U.S. embassy or consular office abroad. A straightforward process can be anticipated if the Migrant child does not have any unfavorable factors that may potentially impact a petition approval. The Migrant child will be required to obtain a medical examination and attend a consular processing interview to finalize this multi-step process. Upon case approval and return of a sealed passport containing a valid visa, the Migrant child will be able to travel to the United States under an immigrant visa. An inspection by a U.S. Customs and Border Protection (CBP) officer at a port of entry will establish a legal entry and lawful permanent status in the United States.

Certain factors that may intervene with a straightforward consular processing and that may require additional filings include the Migrant child’s criminal history and/or previous immigration history related to illegal entries into the United States. Additional services may be required that include the filing of a Waiver(s) and/or motion(s) with an immigration court. It is recommended that the petitioning parent and the Migrant child be guided and/or supported by a licensed attorney and/or an accredited legal representative prior to any action taken at a consular process level. With legal guidance, the Migrant child will be able to verify qualification for a waiver to be able to secure departure from the United States and be able to attend an interview abroad for further processing.

Benefits

The filing or the approval of the petition does not grant the Migrant child legal status or an immediate immigration benefit in the United States. However, once the Migrant child successfully navigates through the multi-step process and obtains approval of an adjustment of status with USCIS or an immigrant visa at U.S. embassy or consular office abroad, the Migrant child is able to obtain lawful permanent status.

Green cards are mailed to the address of preference detailed on the forms filed either with USCIS or the U.S. embassy or consular office abroad. In the past, a social security number was also generated and automatically mailed to the client. In some cases, the Migrant parent may be required to request a social security independently at a local Social Security Office.

Derivative Dependents

A U.S. citizen or lawful permanent resident parent may file a family-based petition on behalf of an unmarried Migrant child and include their derivative children. However, only a U.S. citizen parent may petition on behalf of a married Migrant child and include their derivative children as well.

In circumstances where the Migrant child obtains citizenship via an adoptive parent petition, future sponsorship on behalf of biological parent(s) is not permitted.

Process Description

A family-based petition is a multi-step process that involves agencies like the United States Citizenship and Immigration Services (USCIS), Department of State National Visa Center (NVC), U.S. embassy or consular office abroad as well as U.S. Customs and Border Protection (CBP). A petition filed with USCIS on behalf of a Migrant child may be processed and approved within 12-24 months. (Please note that at this time, times may vary significantly due to the ongoing pandemic impact).

At a consular processing level, post-petition approval, there may be an additional wait time of 12 months prior to obtaining an interview an U.S. embassy and/or consular office abroad. If the Migrant child aged out, there may be a significant wait time for a visa to become available. Wait time may range from 7-15 years. Visas availabilities for all family-sponsored preferences are tracked monthly via the Department of State’s Visa Bulletin. It is important to note that cases requiring waiver(s) and/or additional filings at the immigration court level, may incur a significant longer wait time. (Please note that at this time, times may vary significantly due to the ongoing pandemic impact).

Unfavorable Circumstances

For some individuals, immigration is a complex process to navigate through due to the strict requirements and interpretation of the law. A Migrant child’s criminal history and/or previous immigration history related to illegal entries, prior deportations, and/or previous immigration benefit denials, may negatively impact a petition. Although, some factors may not necessarily cause the denial of a petition, it is best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish best course of action. A legal attorney may be able to assess the Migrant child’s circumstances accordingly to the law, immigration bars, and restrictions.

Relevant Links List

Name Description Website
USCIS Processing Times Website contains details regarding immigration cases processing times. https://egov.uscis.gov/processing-times/

Citations

Family-based petitions on behalf of a Migrant children are processed and adjudicated under strict eligibility. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable law and regulations include:

Citations List

Citations Description Section Title
8 CFR § 245.1 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Eligibility
8 CFR § 204.2 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Petitions for Relatives, Widows and Widowers, and Abused Spouses and Children
INA § 212 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission; Waivers of Inadmissibility
INA § 201 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Worldwide Level of Immigration
INA § 203 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Allocation of Immigrant Visas
8 U.S.C. § 1182 The U.S. Code (USC) contain general and permanent laws of the United States. Inadmissible Aliens

Forms

Related Forms List

Name Description No. Fee
Affidavit of Support Under Section 213A of the INA On a case-by-case scenario, an Affidavit of Support Under Section 213A of the INA may be required for filing with U.S. Citizenship and Immigration Services (USCIS) and/or the Department of State National Visa Center (NVC). I-864 $0
Application for Employment Authorization An Application for Employment Authorization form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of the Migrant Spouse to obtain an employment authorization document. The filing fee may be waived if it's an initial request under adjustment of status). I-765 $410
Application to Register Permanent Residence or Adjust Status An Application to Register Permanent Residence or Adjust Status form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of the Migrant Spouse to obtain a green card. I-485 $750 - $1,225
Immigrant Visa Electronic Application An Immigrant Visa Electronic Application is required for online submission by the Department of State National Visa Center (NVC). The form DS-260 is only accessible via the Consular Electronic Center - Immigrant/Diversity Visa portal. DS-260 $0
Petition for Alien Relative A Petition for Alien Relative form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of petitioning on behalf of a qualifying immediate family member. I-130 $535
Report of Medical Examination and Vaccination Record A medical examination form is to be completed by the Migrant Spouse and the authorized civil surgeon to establish admissibility under health grounds. I-693 $0

Supporting Documents

For an initial filing of a family-based petition on behalf of a Migrant child, supporting documentation will be required to establish relationship and identity. Some of the supporting documentation may include:

Supporting Documents List

Name Description
Passport-Style Photographs Passport-styles photographs must comply with USCIS' requirements related to sizing, position, and color.
Personal Documentation Personal documentation must be submitted to verify the Sponsor's and Migrant's identity. Personal documentation includes birth certificates, passport biographical pages, identification IDs. All documentation must be in compliance with the U.S. Department of State - Bureau of Consular Affairs which requirements vary by country.
Personal Documentation of Minor Children
Proof of Bona Fide Relationship
Proof of Legal Adoption
Proof of Previous Marriage(s) Termination
U.S. Legal Status Verification Proof of legal status is required to ensure Sponsor's eligibility. Sponsor may provide a valid U.S. passport, U.S. birth certificate and/or a U.S. naturalization certificate.
Verification of Current Marriage