Your children’s age and marital status are critical factors in the immigration process. United States immigration law defines a “child” as an unmarried person under 21 years of age and a person who is married and over 21 years of age as a “son” or a “daughter.”
As a citizen or permanent resident of the United States., you may petition for your unmarried son or daughter to become a lawful permanent resident of the U.S. by obtaining what’s often referred to as a “Green Card.” To do so, you need to sponsor your child and prove you have sufficient income or assets to support them when they come to the U. S.
The application process begins by filing for a family-based Green Card through Form I-130, Petition for Alien Relative. Your petition requires you to provide evidence that you’re a family member of the person for whom you are filing. If petitioning for more than one son or daughter, you’ll need to fill out an I-130 for each one of them.
What The Petition Does for Your Child(ren)
Filling a Form I-130 and proving your relationship (such as by providing a birth certificate) gives your child a place in line with others waiting to emigrate from the same country or region. After receiving the documents, forms, and filing fees, the United States Citizenship and Immigration Services (USCIS) will review your petition.
Once the USCIS approves the petition and your son or daughter reaches their priority date, they may immigrate to the U.S., provided they meet admission requirements and pass the required background checks.
Upon I-130 approval by USCIS, immigration law considers your child a preference relative in the family-based visa preference category system. An I-130 approval confers no rights to enter or live in the U.S. If your child lives abroad, they will have to wait for I-130 approval and visa availability before coming to live with you.
Immigration Law and Sponsorship
Under U.S. immigration law, every person seeking immigration to the U.S. based on a relative’s petition must have a financial sponsor. If you choose to sponsor your unmarried child’s immigration by filing a Form I-130, you must agree to be their financial sponsor when the time comes for them to immigrate by filing Form I-864, Affidavit of Support.
Family Preference Categories
Family members of U.S. citizens or permanent residents (Green Card Holders) eligible to apply for a Green Card fall into the following family preference categories:
- Family First Preference (F1) — for unmarried sons and daughters of United States citizens
- Family Second Preference (F2A) — children (Under 21 years old and unmarried) and spouses of permanent residents (Green Card holders)
- Family Second Preference (F2B) — unmarried adult children of permanent residents The married sons and daughters of United States citizens and siblings of United States citizens (The United States citizen has to be 21 years or older) fall into the family third and fourth preference, respectively.
Family members in the family preference category have a limited number of immigrant visas available to them. The USCIS (U.S. Citizenship and Immigration Services) issues Green Cards chronologically from the date an applicant applied. When the number of applicants exceeds the number of available Green Cards (which happens in most counties), applicants must wait in line.
As a result, the date of application becomes the applicant’s priority date. This system often results in waiting periods that may last several years or more. So, filing your visa petition as soon as possible gives you an advantage.
Per-country caps on the number of visas issued annually mean wait times can vary significantly. For example, family members from Mexico, China, India, and the Philippines typically experience backlogs and wait times sometimes reaching several decades.
What About Those in The United States Already?
If your child is already in the U.S. legally as a visitor or non-immigrant, an immigrant visa is immediately available to them as a family preference immigrant, assuming they meet certain other requirements. If the child can get the visa immediately, they may file an I-485 to register permanent residence or adjust status to lawful permanent resident:
- At the same time as you file the I-130 petition to apply for a Green Card without leaving the country
- While the Form I-130 is pending, or
- After the USCIS approves your Form I-130, so long as they haven’t revoked or terminated the form.
Your child may qualify for a travel permit or seek a work permit while waiting for approval to register permanent residence or adjust status.
In addition to properly filing Form I-485, unmarried adult children must meet several requirements to qualify to apply for a Green Card as a family preference immigrant. These include:
- Eligible to receive an immigrant visa
- Inspected and admitted or inspected and paroled into the U.S.
- Physically present in the U.S. at the time of filing Form I-485
- Related to the individual who filed Form I-130
- An immigrant visa is available immediately at the time of filing Form I-485, and at a time the USCIS makes a final decision on the application.
- Merit the favorable exercise of USCIS’s discretion (that means that based on an assessment by the USCIS, the positive factors of the case should outweigh the negative factors); and
- Admissible to the U.S. for lawful permanent residence or eligible for a waiver of inadmissibility or another form of relief.
If your adult child has a non-immigrant visa but overstayed in the United States, you may still file an I-130 petition. However, they may have to apply for permanent residency back in their home country unless eligible for 245(i) protection. Immigration services will not allow a child who departs after having overstayed by 180 days to return to the United States for several years.
Also, an adult child present in the United States without inspection will usually have to leave the county to apply for a Green Card unless they qualify for an exception.
Eligibility to Receive an Immigrant Visa
An unmarried adult child of a U.S. citizen or Green Card Holder is eligible to receive an immigrant visa if they have:
- An approved Form I-130 filed on their behalf
- A pending Form I-130 (ultimately approved), or
- A Form I-130 (ultimately approved) filed at the same time they filed Form I-485
Living in the U.S. without authorization makes the child inadmissible and possibly ineligible for a Green Card. See an immigration attorney immediately if your unmarried child is living in the U.S. unlawfully (after visa expiration or illegal entry). Having an approved I-130 alone may not solve the problem of unlawful presence.
Applicants filing I-130 petitions concurrently with permanent resident applications (I-485) must do so at different locations than where they would file an I-130 petition by itself.
How long the entire application and approval process takes depends on whether the unmarried adult son or daughter is the child of a United States citizen or lawful permanent resident (green card holder). Additional factors that affect the processing time depend on the location of processing and where the interview, if applicable, eventually takes place.
Green Card for Unmarried Adult Children of U.S. Citizens
As a U.S. citizen petitioning for a Green Card for unmarried adult children, you must be in the U.S. when you file an I-130 petition. You may petition for either married or unmarried adult children, but married adult children face longer processing times than their unmarried counterparts.
Moreover, United States immigration law doesn’t consider a child over 21 as an immediate relative. That makes getting a Green Card for unmarried adult children significantly more complicated than for a child under 21 years of age.
According to immigration law, immediate relatives include unmarried children under the age of 21 years and parents of U.S. citizens. Immediate relatives always have a visa number immediately available and don’t have to wait in line for their Green Cards.
Green Card for Unmarried Adult Children of a Lawful Permanent Resident
As mentioned above, U.S. permanent residents (Green Card Holders) can petition for a Green Card for unmarried adult children by filing form I-130, Petition for Alien Relative. As a Green Card Holder, you must demonstrate your status with:
- A front and back copy of your Green Card (Form I-551), or
- A copy of your foreign passport with a stamp that provides temporary evidence of permanent residency.
- Proof of parent-child relationship (With biological children, all you need to provide is the child’s birth certificate listing you as a parent; if you’re the father, a copy of your marriage certificate indicating your marriage to the child’s mother. For an adopted child or a child born out of wedlock, you need to provide supporting documents to support your claim.
Please note that if you or your child’s names have changed since birth, you must submit additional paperwork.
If you filed for a Green Card for unmarried adult children when you were a permanent resident but then naturalize and become a U.S. citizen, NVC (National Visa Center) can convert the visa category from F2B to F1.
Sometimes, however, an F2B visa has a shorter wait time than an F1 visa, making it beneficial to submit a request to the NVC for your child to remain in the F2B category. So, visa applicants can “opt-out” of conversion to the F1 visa category and remain an F2B visa applicant.
Can My Son or Daughter Wait in The United States Until He or She Can Become a Permanent Resident?
The short answer is no. An approved I-130 petition gives your child a place in line among those waiting to immigrate. It doesn’t permit your child to live or work in the U.S. while they wait to apply for permanent residence.
A child of a U.S. citizen or Green Card holder who enters or stays in the U.S. without legal status compromises their eligibility to get permanent residence status once the time comes for them to get their visa.
What Happens If My Child Marries?
Since the USCIS has no visa category for a married son or daughter of a Green Card Holder, adult children of permanent residents who marry while waiting to process their petition lose their eligibility for a visa.
As a green card holder seeking a Green Card for your married child, you will need to naturalize first, or your married child will need to find another route to permanent residence (such as an employer-sponsored visa.)
If you become a U.S. citizen before your unmarried child marries, you can file a new I-130 petition for your child and continue the immigration process. Always provide accurate information, as false information may result in deportation proceedings.
Do You Need Help Navigating the Process of Getting a Green Card for Unmarried Children?
Figuring out immigration law may prove confusing, complex, and time-consuming. Talk to an experienced family and immigration attorney about your options, expected timeline in consular processing, getting proper documentation, and any additional or alternative ways to immigrate to the U.S.
Every immigrant’s background and eligibility to apply for a Green Card differs, and process times can change. Many applicants consider visa processing waiting times a primary immigration issue, so the sooner you make your family petition, the better.
Moreover, case law on who enjoys an immigration benefit keeps changing. As an experienced law firm, The Costas Network Law Center, LLC, has a team of experienced professionals ready to provide you with the legal advice and guidance you need to co-operate with immigration authorities.
We base every attorney-client relationship on trust and confidence. And our duty of confidentiality means we have to protect any sensitive or confidential information you share with us.
You can count on a dependable immigration lawyer from our team to offer reliable representation and help you with the application process. The Costas Network Law Center, LLC, can help you reunite with your family in the United States.
Call us today at (216) 862-8380 and let our legal team help you apply for a Green Card for unmarried children.
