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Who is a “child” for Immigration Purposes?

Definition of a Child

According to INA 101(b) (1) and 8 U.S.C. 1101(b)(1), a child is defined as: an “unmarried person under 21 years of age who is a:

  • A child born in wedlock to a U.S. citizen or lawful permanent resident (LPR) parent;
  • The legitimated child of a U.S. citizen or LPR parent who is under 18 and in the legal custody of the legitimating parent or parents at the time of legitimation;
  • The stepchild of a U.S. citizen or LPR parent who is under 18 at the time of the marriage, creating the step-relationship;
  • A child adopted while under age 16 (or 18 if the sibling exception applies) who has jointly resided with and been in the legal custody of the adopting U.S. citizen or LPR parent for at least 2 years;
  • An orphan who has been adopted abroad by a U.S. citizen or who is coming to the United States for adoption by a U.S. citizen;
  • A Hague Convention adoptee who has been adopted abroad by a U.S. citizen or who is coming to the United States for adoption by a U.S. citizen; or
  • A child born out of wedlock to a natural U.S. citizen or LPR parent. If the petitioning parent is the natural father and the child has not been legitimated, the natural father and child must have had a bona-fide parent-child relationship before the child reached the age of 21 or married. 

WHAT ABOUT STEP-CHILDREN?

Step Child [See INA 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B)]: A step-child is a child as long as the step-child was under 18 when step-relationship was created, meaning that the natural parent and step-parent were married before the child turned 18 years of age:

In situations where the natural mother and/or father is an LPR, but the step-parent is a USC, the child can avoid family 2D preference backlog through the step-parent’s petition.

Example: Michael is a U.S. citizen and Mary is an alien from France. Mary has a child, named Joe who is younger than 18 years of age, from a previous marriage that she has custody over. Therefore, if Michael and Mary get married before Joe turns 18 years of age, Michael will be able to establish a legal step-parent/child relationship with Joe.

When Does a Step-Child Relationship End?

Normally, a step-relationship terminates when a marriage ends, especially if it ends in divorce.  [Matter of Simicevic, AFM 21.4 (d)(2)(B)] However, under certain circumstances, a step-relationship may continue after the death of the natural parent or even after the legal separation or divorce of the step-parent and the natural parent if there is an ongoing relationship between the step-parent and the step-child.  If the marriage ends in annulment, however, the step relationship is deemed to have never existed because, legally, the marriage never existed. [Matter of Pagnerre, Matter of Mowrer, and Matter of Mourillon].

Adopted Child

Children adopted before 16, and having 2 years legal custody and residence with adopting parent.  However, if the family has already adopted a sibling, the second brother or sister who is adopted may be under 18 at time of adoption.

In order for an adopted child to be considered under Immigration Law, the adoption must occur before the child turns 16 years of age, and must be coupled with 2 years of legal custody with the adopting parent and reside with the adopting parent for 2 years.

The two year custody and residency requirements may be satisfied before or after the legal custody or adoption, by either parent.  Meeting the two year legal custody requirement requires either the final adoption decree or official documentation in the form of a custody award by the court or recognized government entity.  This requirement must be satisfied through an official action at a recognized government entity between the natural parent(s) and the adopting parent. Informal documents, such as sworn affidavits, are insufficient.

The natural parents of an adopted child cannot obtain immigration benefits through the natural child if the child was adopted in accordance under the provisions listed above.  This is different than step-children, however, who can petition for their natural parent. If the adopted child did not and cannot acquire any immigration benefits through the adoptive parents, the natural parents may be able to petition for the child.  The adopted child, also, cannot petition for their natural siblings if the child was adopted in accordance to the provisions listed above. However, if the relationship between the adopted parent and the child end, then the custody of the child goes back to the natural parent or to the state/country if the child was an orphan prior to the adoption.

The Hague Convention

The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption [8 C.F.R. 204.3(k)(2)]:

The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption is an international convention dealing with international adoption, child laundering, and child trafficking.  The objectives of the convention were to (1) establish safeguards to ensure that inter-country adoptions take place in the best interests of children and with the respect for the child’s fundamental rights; (2) establish a system of co-operation amongst the participating countries to ensure that those safeguard are respected; thus, preventing the abduction, sale of, or traffic of children; and (3) to secure the recognition of the adoptions made in the participating countries in accordance with the convention.  The conditions of the Hague Convention apply to adoptions that occur after April 1, 2008.