Immigration Issues Concerning Children

The United States family-based immigration is based on classification. Before the immigration service considers a person's immigration petition, a relationship must be established between the person and a U.S. citizen or a permanent resident. How soon the foreigner will be able to immigrate depends on whether his or her relationship is that of a parent, spouse, child, daughter, son, or sibling. In case you are wondering, immigration laws do treat the terms "child" and "son/daughter" differently.

A child is an unmarried person under the age of twenty-one. If a person is married and under the age of twenty-one, he or she is classified as a son or daughter of a citizen or permanent resident. Similarly, if a person is unmarried but over the age of twenty-one, the term "child" does not apply.

There is a significant difference whether a person is classified as a child or son/daughter. A child is considered an immediate relative of a U.S. citizen; thus, he or she is not subject to numerically limited immigrant visas, while sons and daughters are subject to such limitations. In life, this translates into much shorter wait time for children to immigrate. For example, unmarried sons and daughters of U.S. citizens must wait about six years before a visa number becomes available to them. Married sons and daughters of citizens must wait about eleven years before they can apply for an immigrant visa. The wait is even longer for nationals of Mexico and the Philippines. Currently, if there are no complications, it takes somewhere from three to eight months for an immediate relative of a U.S. citizen to immigrate.

In light of the above, citizens and permanent residents who wish to unite with their children in the United States would be advised to submit their petitions while their children are unmarried under the age of twenty-one. Often, parents worry that their children will turn twenty-one while the immigration service reviews the request and that the petitions will be automatically converted to the oversubscribed category of "unmarried sons and daughters of U.S. citizens."

Thankfully, the Child Status Protection Act (CSPA), which went into effect in 2002, provides a so-called aging-out relief for foreign nationals. The Act freezes the children's ages as of the dates that the petitions are filed. Additionally, the "married sons and daughters of U.S. citizens" petition will be converted to an immediate relative petition if the child's marriage ends due to divorce, annulment, or death and he or she is still under the age of twenty-one.

The above discussion is general in nature and does not cover the effect of the CSPA on the children, sons and daughters of permanent residents.