Bringing Children, Sons and Daughters to Live in the United States as Permanent Residents
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.
|If you are a||You may petition for|
|Permanent resident (green card holder)||
A more detailed description of who is considered a child in the immigration process is given below. If you or your child, son or daughter currently serves in the U.S. military, please schedule an Attorney Consultation or contact the Hassonjee Law Firm for your case specific 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 childs 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 childs 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 childs legal parent at the time of the childs 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 intercountry or Hague processes. Normally, you would only use the Form I-130 process if your child did not meet the definition of orphan. See the Adoption link to the right for more information.
Can my child come to the United States to live while the visa petition Is pending?
If you are a U.S. citizen, once you file Form I-130, your child is eligible to apply for a nonimmigrant K-4 visa. This will entitle him or her to come to the United States to live and work or go to school while the visa petition is pending. To petition for this benefit, you may file Form I-129F. However, you are not required to file Form I-129F and your child does not require a K-4 visa. Your child may wait abroad for immigrant visa processing. Seeking a K-4 visa can be a method for him or her to come to the United States more quickly. For more information, please schedule an Attorney Consultation or contact the Hassonjee Law Firm for your case specific information.
If you are a lawful permanent resident (green card holder) and you have filed Form I-130 for your child on or before December 21, 2000, your child may be eligible for the V visa classification if more than three years have passed since the I-130 was filed. For more information on V visas, please schedule an Attorney Consultation or contact the Hassonjee Law Firm for your case specific information.
My Petition was Denied: Can I Appeal?
If the visa petition you filed is denied, the denial letter will tell you how to appeal and when you must file the appeal. After your appeal form and the required fee are processed, the appeal may be sent to the Board of Immigration Appeals. Please schedule an Attorney Consultation or contact the Hassonjee Law Firm for your case specific information.
This section is for beneficiaries who became permanent residents through a preference classification.
If you were married and/or had children who did not obtain permanent residence at the same time you did, they may be eligible for follow-to-join benefits. This means that you do not have to submit a separate Form I-130 for your spouse and/or children. In addition, your spouse and/or children will not have to wait any extra time for a visa number to become available. In this case, you may simply notify a U.S. consulate that you are a permanent resident so that your spouse and/or children can apply for an immigrant visa.
Your spouse and/or children may be eligible for following-to-join benefits if:
- The relationship existed at the time you became a permanent resident and still exists, AND
- You received an immigrant visa or adjusted status in a preference category.
If your family member falls into this category and you adjusted to permanent residency in the United States, please schedule an Attorney Consultation or contact the Hassonjee Law Firm for your case specific information.
DEATH OF THE PRINCIPAL BENEFICIARY
Unfortunately, death is a part of life. If you have a an approved I-130 petition but the Principal Beneficiary of that approved I-130 petition dies before he becomes a US legal permanent resident, do not despair. There may still be a way for the spouse and children of the deceased principal beneficiary to get their green cards.
For example: If USC Brother John files for Sister Maya in India. Brother John has an approved I-130 petition. 6 years after filing of the I-130 petition Sister Maya dies. Well, Brother John can request a Humanitarian Reinstatement of the approved I-130 petition, which will allow husband and minor children of Sister Maya to still get their permanent resident status and come to the USA.
Humanitarian reinstatement is a discretionary form of relief available to the principal beneficiary of an approved Form I-130, Petition for Alien Relative, that was approved prior to the death of the petitioner.
Basic Eligibility for Humanitarian Reinstatement
Humanitarian reinstatement may only be requested by the principal beneficiary when the petitioner of an approved Form I-130, Petition for Alien Relative, has died. Humanitarian reinstatement cannot be granted if the petitioner died while the petition was pending. See separate section for Surviving Relatives of Deceased Petitioner for other forms of relief.
Most immediate relatives and family-based immigrants are required to have Petitioner provide Form I-864, Affidavit of Support. If you were required to have Form I-864 and the petitioner died, you must have either a new Form I-864 from a substitute sponsor or Form I-864W, Intending Immigrants Affidavit of Support Exemption.
The substitute sponsor must be:
A U.S. citizen, national, or lawful permanent resident;
At least 18 years old; and
Your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
Humanitarian reinstatement is a discretionary benefit. Exercising discretion means weighing positive factors against negative factors to make a decision. In addition to meeting the basic requirements for humanitarian reinstatement, your request must warrant a favorable exercise of discretion, meaning that the pros in granting your request outweigh the cons.
Please feel free to contact the Hassonjee Law Firm if you need assistance in this matter.