What about children?

One of the most complex areas of immigration law concerns visas for dependent family members of someone who is seeking a U.S. visa or other immigration status. There is no uniform rule or set of rules applicable across all visas and categories of family members.

For non-immigrant visas, for example, in many cases a child's status is strictly derivative of a parent. Thus, the wife and unmarried children under 21 of an H-1B visa holder can obtain H-4 visas, which give certain limited rights to reside and work or study in the U.S.. But the spouse and children of a B-2 visitor for pleasure each must obtain their own B-2, though of course matters such as foreign residence and income source abroad may depend on another family member's foreign residence and income situation (and for minor children almost invariably the ability to receive a visa will depend on parents' qualifications). For B-1 visitors for business, there is no dependent visa category for family members, each of whom usually applies as a B-2.

A similar maze exists for immigrant visas. The spouse and unmarried children under 21 of potential immigrants subject to the U.S. visa preference quota system may qualify for derivative status, allowing the spouse and unmarried children under 21 to accompany the qualified applicant parent, and upon payment of fees and passing medical exams, to obtain green cards at the same time. This includes both employment-based and family-based immigrants subject to visa preference quotas, such as a brother or sister of a U.S. citizen who finally obtains an immigrant visa; in most cases the successful primary beneficiary can bring along a spouse and unmarried minor children not yet 21 years of age, making available green cards to everyone in the family at the same.

Immediate relatives of U.S. citizens who are not subject to visa quote preferences, however, are subject to other rules. For example, where an adult U.S. citizen petitions for his or her parent, the sponsored parent is not eligible to bring along another unmarried child under 21as a derivative family member, contrary to the results in visa preference cases.

Also, where a U.S. citizen applies to immigrate a foreign spouse and the foreign born biological children of the U.S. citizen (called "immediate relatives"), each qualifying family member must have a separate I-130 petition filed ; the children cannot take advantage of the I-130 filing of the alien parent, even though the the children are required to be listed on the I-130 form of the parent. (The listing of a child on a form I-130 petition of a parent without more gives no entitlement of a listed child to obtain a green card, which is a commonly encountered misconception among non-lawyers).

There are other rules for step children of U.S. citizens. A foreign born unmarried child under 18 at the time of the marriage of a parent to a U.S. citizen is treated the same as a biological child of the U.S. citizen. An independent filing for each step child of the U.S. citizen must be made, with an additional filing fee and separate medical exam, though, like the foreign born parent, eligibility for the child will depend mainly upon a finding that the marriage between the foreign born parent and the step parent U.S. citizen was entered into in good faith.

In many cases, where an unmarried child reaches 21 years of age while an immigration petition of a parent is pending (a process called "aging-out"), the child is no longer eligible as a minor child, and is considered an adult child, subject to other rules, but there are exceptions. Under the Child Status Protection Act, for immediate relative petitions filed by U.S. citizens, the time for processing the I-130 is subtracted from the biological age of the child, so that a person who was under age 21 when the petition was filed is not penalized for the time it takes to process the I-130 petition. A similar rule applies for the unmarried children of permanent residents who naturalize while the I-130 petition is pending; from the date of naturalization, the time is subtracted from the child's biological age to determine whether "aging-out" occurred. But if the petition is filed under the visa preference quota system, the entire waiting time to obtain the visa is subtracted from the biological age of the unmarried child under 21 for aging-out calculations, so long as the child applies for the permanent residency within one year of the immigrant visa becoming available.

A step child who is a conditional resident must have the conditions on the residence removed, which is dependent on the foreign parent's removal of conditions, but a step child whose conditions were successfully removed can apply for citizenship the end of the waiting period to be naturalized without waiting for the qualifying parent also to naturalize. Also, in many cases, a separate I-751 filing to remove the conditions of the child's permanent residency is not required, but in other cases such a separate petition may be advisable, even though optional, leading to a petition with its own filing fee.

For derivative asylee or refugee children, so long as the child was under 21 and unmarried at the time that the petition of the qualifying parent was filed, the child does not age out unless the child marries, regardless of the biological age at the time permanent residency is sought. For such children who do marry and become disqualified for derivative status as a result, an administrative procedure exists to have the derivative status converted to primary status so that the ability to obtain permanent residency is not necessarily irretreivably lost.

Each situation must determined according to very specific rules.

Messing Law Offices, Family Immigration Attorneys in Tucson

At Messing Law Offices, we provide advice on all types of family immigration situations. If you are seeking the help of an experienced immigration lawyer, call Messing Law Offices for professional Arizona immigration attorney assistance.

John Messing has been reappointed the Liaison from the American Bar Association (SciTech Section) to United States Citizenship & Immigration Services 2010-2012. Read the October 2011 Report on the USCIS proposed Transform E-filing System by John Messing, Tucson immigration lawyer.