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Preference System, or self-petitioning children qualifying as Special
Immigrants. Asylum and other forms of protected status are also available for
children who meet certain criteria. The Child Status Protection Act governs the
time at which a child will lose eligibility based on age. Children
Qualifying as Immediate Relative of U.S. Citizen
Immigrant Children of United States Citizens
Unmarried children under age 21 of U.S. citizens are classified as immediate
relatives and, as such, Legal Permanent Resident (Green Card) visas are made
immediately available for them without numerical limitation. If a child was born
to a U.S. citizen overseas, there are rules governing that child’s own U.S.
citizenship based on the dates and length of time the child’s U.S. citizen
parent has lived in the United States. Other categories of children must apply
for Legal Permanent Resident status under the Family Preference System or be
qualified as an immediate relative through adoption or through the marriage of
an alien parent to a U.S. Citizen.
Immigrant Step-Children of United States
Citizens
Natural children under age 21 of aliens married to U.S. Citizens may petition
for Legal Permanent Residence along with an alien parent whose U.S. Citizen
spouse has petitioned for that alien parent. A step-child of an alien who is
married to a U.S. Citizen or LPR can also qualify to immigrate along with their
step-parent so long as the step-relationship was created before the child’s 18th
birthday. All step-children who obtain immigrant status based on a marriage of
less than two years are deemed conditional residents and must later apply to
have this “conditional” status removed.
Adopted Foreign-born Orphans of United States
Citizens
Foreign-born children under age 16 who qualify
as alien orphans may immigrate to the United States as the immediate relative of
a U.S. Citizen. Alien orphans are foreign-born children who have been abandoned
by or separated from both natural parents or the sole surviving parent has
irrevocably released the child for adoption. Prospective U.S. citizen adoptive
parents must undergo an application process to prove that they are suitable
parents who can provide a proper home environment. Most adopted foreign-born
children will acquire U.S. citizenship on the date they immigrate to the United
States. An adopted alien orphan may not apply for immigration benefits on behalf
of his or her natural parent.
Part Two of this article will discuss children
who can immigrate to the United States as adults, as siblings of a U.S. Citizen,
or as students.
Sharon Kale Dow is an attorney with Hardison
& Associates, in Raleigh, NC. She limits her practice to immigration law and
is an active member of the American Immigration Lawyers Association. Ms. Dow
also serves as Chair-Elect of the Hispanic-Latino Issues Division of the North
Carolina Academy of Trial Lawyers.
THE INFORMATION CONTAINED IN THIS ARTICLE DOES
NOT CONSTITUTE LEGAL ADVICE. CONSULT AN IMMIGRATION LAW ATTORNEY ABOUT YOUR
INDIVIDUAL SITUATION.
Immigration Options for Children
Part Two
Unmarried children under age 21 of U.S. citizens are classified as immediate
relatives and, as such, Legal Permanent Resident visas (“Green Cards”) are made
immediately available for them without numerical limitation. Children who are
not classified as immediate relatives of U.S. Citizens for immigration purposes
may be able to immigrate under the Family Preference Classification System,
which makes available a limited number of Green Cards each year to children and
certain other family members who are not considered immediate relatives for
immigration purposes. Once the initial petition is approved, the child must then
wait for a Green Card number to become available and successfully complete the
Adjustment of Status process to become a Legal Permanent Resident of the United
States.
The Family Preference System
The Family Preference System creates Legal
Permanent Resident visas (“Green Cards”) for adult children of U.S. Citizens,
Relatives of Legal Permanent Residents, and siblings of U.S. Citizens. Children
under age 21 of any person who qualifies to petition for Legal Permanent
Residence under the Family Preference System may also petition as a derivative
beneficiary along with their Family Preference Class alien parent. There are
limited numbers of Green Cards available each year for these types of immigrant
petitions and preference is given first to the unmarried adult children of U.S.
Citizens, then to the qualifying relatives of Legal Permanent Residents. The
longest waits are for the brothers and sisters of United States citizens due to
the high volume of applicants compared to the low number of visas made available
for this lowest of the preference classes. There is a significant period that an
immigrant child must wait to acquire Legal Permanent Residence under the Family
Preference System and a real possibility that a child who is included as a
derivative beneficiary on the application of an immigrant parent will “age out”
if that child turns 21 before a visa number becomes available for him or her.
The Child Status Protection Act governs the time at which a child will lose
eligibility based on age. Even with the lengthy waits that are to be expected
with the Family Preference System, it is still a good idea to petition for
qualifying children and other relatives because a pending petition may create
benefits later based on legislative reform efforts to improve immigration laws.
Self-Petitioning Children
Special protection exists for alien children
who have been subject to an abusive U.S. citizen or LPR in the context of a
marriage to the child’s alien parent. Abused alien children can apply to be
deemed eligible to self-petition for their own Legal Permanent Resident status.
Also, alien immigrant children who a court declares dependent of the State or
who a court commits to the care of a state agency may also apply to be deemed
eligible to adjust status to LPR as a self-petitioning child. Such unaccompanied
children should seek legal assistance from an immigration attorney right away,
especially if they have been stopped by Immigration officials upon entry into
the United States. There are many non-profit organizations designed to assist
such children, the most prominent of which is the United Nations’ National
Center for Immigrant and Refugee Children (ph # 202-347-3507 or e-mail
nationalcenter@uscridc.org).
Attending School and Student Visas
Student visas are available to aliens who wish
to enter the United States to study and who have no intention of abandoning
their foreign residence. Also, children who hold E-2, H-4, J-2 or L-2 visa
status as derivative beneficiaries of parents who are in the United States on
non-immigrant visas may attend school on a full-time basis. The two major
categories of student visas are the F classification for academic students and
the M classification for vocational and non-academic students. Student visa
holders must be enrolled in a full course of study and study program
registration is tracked by the United States in a computerized system known as
SEVIS. Approved academic institutions for the F-1 academic visa include
universities, colleges, high schools, and primary schools as well as seminary
and language training schools. There are specific rules that govern when and if
a student visa holder may work while in the United States. For children already
in the United States, the U.S. Supreme Court has held that an alien child is
entitled to equal protection under the law, and a State cannot deny alien
children who reside within its district the benefits of public education granted
to other residents. Plyler v. Doe, 457 U.S. 202 (1982). The equal protection
right to public education does not protect a child or the child’s parents from
removal based on lack of legal immigration status.
THE INFORMATION CONTAINED IN THIS ARTICLE DOES
NOT CONSTITUTE LEGAL ADVICE. CONSULT AN IMMIGRATION LAW ATTORNEY ABOUT YOUR
INDIVIDUAL SITUATION. | 
