Spousal Visa

CHILDREN VISA

                      

The age and marital status of your children are important factors in the immigration process. For immigration purposes, a “child” is defined as being unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter”.

spousal visa

Eligibility Requirements

If you are a… You may petition for…
U.S. citizen · Children (unmarried and under 21)

· Unmarried sons and daughters (21 or over) – Your son or daughter’s child(ren) may be included on this petition.

· Married sons and daughters (any age) – Your son or daughter’s spouse and/or child(ren) may be included on this petition.

Permanent resident (green card holder) · Children (unmarried and under 21) – Your child’s child(ren) may be included on this petition.

· Unmarried sons and daughters (21 or over) – Your son or daughter’s child(ren) may be included on this petition.

Required Documentation

  • Form I-130, Petition for Alien Relative (signed with proper fee)
  • Evidence of your U.S. citizenship:
  • A copy of your U.S. birth certificate OR
  • A copy of your unexpired U.S. passport OR
  • A copy of Consular Report of Birth Abroad OR
  • A copy of your naturalization certificate OR
  • A copy of your certificate of citizenship
  • If you are a permanent resident, you must demonstrate your status with:
  • A copy (front and back) of Form I-551 (green card) OR
  • A copy of your foreign passport bearing a stamp showing temporary evidence of permanent residence.
  • If your name or your child’s name has changed, proof of legal name change (may include marriage certificate, divorce decree, adoption decree, court judgment of name change, etc.)
  • Proof of relationship (see chart below for case-specific requirements)
If you are the… You must also submit…
Genetic mother or a non-genetic legal gestational mother · A copy of your child’s birth certificate issued by civil authorities
Genetic father · A copy of your child’s birth certificate issued by civil authorities

· A copy of your marriage certificate to the child’s or a genetic or legal gestational mother

· If you and/or the genetic or legal gestational mother are no longer married, you must also submit evidence of the legal termination of that marriage through death, divorce, or annulment.

· If you never married the child’s mother before the child turned 18:

o If the law of your or your child’s residence considers the child legitimated, you do not need to provide additional information

o If your child is not legitimated under the law, you must submit evidence that you established a bona fide father-child relationship prior to the child turning 21 or marrying. This should be evidence of emotional and/or financial involvement in the child’s life.

Step-parent (step-mother or step-father)  

· A copy of your step-child’s birth certificate issued by civil authorities

· A copy of your civil marriage certificate to your step-child’s genetic or legal gestational parent

· Proof of the legal termination of all previous marriages for you and/or the genetic parent or legal gestational mother (divorce decree, death certificate, annulment decree)

Adoptive parent (adoptive mother or adoptive father) · Copy of child’s original birth certificate

· Copy of the final adoption decree

· Evidence that you had 2 years of legal custody (this could have been awarded by a court prior to the final adoption decree)

· Evidence that you had 2 years of physical custody (this means time during which the child was living with you and you were exercising primary parental control)

Filing for Your Relative Who Lives in the United States

If you are a… Then…
U.S. citizen petitioning for your child (unmarried and under 21) Your child may file Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time that you file Form I-130
U.S. citizen petitioning for your son or daughter (married and/or 21 or over) You file Form I-130. Your son or daughter files Form I-485 when a visa becomes available.
Permanent resident (green card holder) petitioning for your child, son, or daughter You file Form I-130. Your child, son, or daughter may file Form I-485 when a visa becomes available.

Filing for Your Relative Who Lives Outside the United States

If your child, son, or daughter is outside the United States, you file Form I-130. The petition will be sent for consular processing after it is approved and a visa is available. The U.S. Embassy or consulate will provide notification and processing information.

Who is Considered to be a “Child” in the Immigration Process?

For immigration purposes, a child can be any of the following:

  • A genetic child born in wedlock
  • A genetic child born out of wedlock:
  • If the mother is petitioning, no legitimation is required.
  • If the father is petitioning, legitimation is required in accordance with the laws of the father or child’s place of residence.
  • If the father is petitioning and the relationship is not legitimated under applicable laws, a bona fide parent-child relationship must be shown to have existed prior to the child’s 21st birthday and while the child was unmarried.
  • A child born through Assisted Reproductive Technology (ART) to a non-genetic gestational mother who is recognized under the law of the relevant jurisdiction as the child’s legal parent at the time of the child’s birth.
  • A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18
  • An adopted child if the child was adopted prior to age 16 (one exception is if siblings are adopted, as long as one was under 16, the other could be older than 16 but younger than 18), AND the adopted child has resided in the legal and physical custody of the adoptive parent for 2 years prior to filing (the legal and physical custody do not have to be the same time period, but each must be met for 2 years) NOTE: Most adoption-based immigration occurs through the orphan inter-country or Hague processes. Normally, you would only use the Form I-130 process if your child did not meet the definition of orphan.

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