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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.
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.
The Family Preference Classification System
Children who are not immediate relatives of U.S. Citizens may be able to
immigrate as a relative under the Family Preference Classification System.
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 Preference Class alien parent. 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.
| Preference Class |
Immigrant Beneficiary |
U.S. Sponsor |
Visas Per Year |
| 1st |
Unmarried Adult Child (21 years or
older) |
U.S. Citizen |
23,400* |
| 2nd A |
Minor Child |
LPR |
87,900 |
| 2nd B |
Unmarried Adult Child |
LPR |
26,300 |
| 3rd |
Married Adult Children |
U.S. Citizen |
23,400* |
| 4th |
Brothers and Sisters |
U.S. Citizen |
65,000* |
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.
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 BROCHURE DOES
NOT CONSTITUTE LEGAL ADVICE. CONSULT AN IMMIGRATION LAW ATTORNEY ABOUT YOUR
INDIVIDUAL SITUATION. | 
