Description

A U.S. citizen or lawful permanent resident parent, also referred to as a “Petitioner”, may be eligible to file a petition on behalf of a migrant child, also referred to as a “Beneficiary”, residing in the United States or abroad. Regardless of the Petitioner’s lawful status, either U.S. citizen or lawful permanent resident, sponsorship is permitted to minor children (under the age of 21), adult sons/daughters (over the age of 21), adopted children as well as stepchildren. However, sponsorship for married children is solely extended to U.S. citizen parents. Therefore, the Petitioner’s legal status and Beneficiary’s age and marital status, are determining factors of an immigration pathway resulting in a multi-step process.

All petitions filed on behalf of a Beneficiary should establish a Parent-Child relationship in order to meet eligibility. In circumstances where the Beneficiary was born out of wedlock, the mother will directly qualify as a petitioning parent. However, the father should establish support and involvement in the Beneficiary’s life prior to reaching 21 years of age. If the petition is based on adoption, eligibility will be based on the adoption completion occurring before the Beneficiary reached 16 years of age. Generally, evidence must be provided to establish that the Beneficiary 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’s and stepparent’s marriage occurring while the Beneficiary 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 with the law.

In the situation where the parent is a U.S. citizen and the Beneficiary (under the age of 21 years old) is lawfully in the United States and is not found to be inadmissible, the Beneficiary may be eligible to simultaneously file Form I-130, Petition for Alien Relative, and Form 485, Application to Register Permanent Residence or Adjust Status, with U.S. Citizenship and Immigration Services (USCIS). It is highly important that USCIS processes receipt of petition before the Beneficiary turns 21 years of age. The U.S. citizen parent as well as the Beneficiary 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 Beneficiary ages out (turns 21 years old), the Petitioner will only be eligible to file a petition with USCIS to initiate the case. All initial documentation submitted must verify the legitimacy of the Parent-Child relationship either by birth, adoption, or parents’ marriages. Once the case is received by USCIS, a Notice of Receipt is issued to the Petitioner’s mailing address. It is very important to safely retain record of this notice as it includes important information regarding receipt number, priority date, class request, and general information related to the petition. Upon approval, the case will remain on standby until a visa becomes available for the assigned priority category. Unfortunately, an adult Beneficiary may incur a significant wait time before becoming eligible for adjustment of status in the United States or continuing consular processing for 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 Beneficiary does not have any unfavorable factors that may potentially impact a petition approval. The Beneficiary will generally 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 Beneficiary 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 that may require additional actions include the Beneficiary’s criminal history and/or previous immigration history related to illegal entries to the United States. Additional services may be required that include the filing of a Waiver(s) and/or motion(s) before the Executive Office of Immigration Review (EORI).  It is recommended that the petitioning parent and Beneficiary 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 Beneficiary 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 Beneficiary legal status or an immediate immigration benefit in the United States. However, once the Beneficiary 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 Beneficiary can obtain lawful permanent status.

The Beneficiary may also become eligible to apply for an employment authorization document (EAD) and a social security number pursuant to a pending adjustment of status application in the United States. Upon approval of the adjustment of status application, the Beneficiary’s green card will be mailed to the U.S. address of record. However, consular process approval and lawful entry to the United States will generate the production and mailing of the Beneficiary’s green card in the United States.

Derivative Dependents

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

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

Process Description

The family-based petition process and timeframes vary depending on the agencies’ internal policies. A family-based petition is a multi-step process that involves agencies like 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 Beneficiary may generally be processed and approved within 12-24 months. Petitioners and/or Beneficiaries may visit USCIS’ webpage and use USCIS tools and resources to obtain up-to-date case processing times.

At a consular processing level, post-petition approval, there may be an additional wait time of 12-18 months prior to obtaining an interview an U.S. embassy and/or consular office abroad. If the Beneficiary aged out, there may be a significant wait time for a visa to become available. Currently, the wait time may range from 7-15 years depending on the country. Visas availabilities for all family-sponsored preferences are tracked monthly via the Department of State’s Visa Bulletin. Petitioners and/or Beneficiaries may visit USCIS’ webpage and use the Department of State’s Visa Bulletin charts to obtain up-to-date case processing times.   It is important to note that cases requiring waiver(s) and/or additional filings at the immigration court level may incur a significantly longer wait time. An approximate processing time cannot be allocated as EOIR internal policies and timeframes vary significantly from state to state.

Unfavorable Circumstances

For some individuals, immigration is a complex process to navigate through due to the strict requirements and interpretation of the law. A Beneficiary’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 the best course of action. A legal attorney may be able to assess the Beneficiary’s circumstances accordingly to the law, immigration bars, and restrictions.

Relevant Links List

Citations

Family-based petitions on behalf of a migrant child are processed and adjudicated under strict eligibility requirements. 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 laws and regulations include:

Citations List

Related Forms List

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