Getting a U.S Green Card for Your Child on the Imminence of Turning 21 Years Old – Form I-130

There are many questions that come to mind when thinking about applying for a U.S. green card for an immediate relative. The most asked question is: As a permanent resident (also known as a green card holder) or naturalized U.S citizen, can I apply for a green card for my child, who is about to turn 21 years old and wishes to come to the United States, or remain in the country permanently?  If I apply for a green card based on approved I-140, will my children also be eligible for a green card?

In most cases, the answer is YES. If you are already a green card holder or U.S. citizen, you can apply for a green card for your children by filling the Petition for an Alien Relative, often referred to as the Form I-130. This form must be filed with the U.S. Citizenship and Immigration Service (USCIS), which is a part of the U.S. Department of Homeland Security (DHS).

Form I-130 is the first step for petitioning for a Green card for an immediate relative, such as a son and daughter. This establishes the relationship between the petitioner and the beneficiary. In the case of a parent and children, the mother or father would be the petitioner and the son or daughter the beneficiary.

However, there are certain things that need to be considered before petitioning for immediate relatives, the category into which sons and daughters would fall.

• Unlimited number of visas issued to immediate family members of U.S citizens;
• Petitions filed for permanent residents fall into the F2A preference category, with a limited number of visas issued yearly.*
• Processing time may vary:

1. For parents who are permanent residents of children living abroad – processing time is between 18-32 months;
2. For parents who are permanent residents of children living in the United States – processing time is between 12-22 months;
3. For U.S citizen parents of children living abroad – processing time is between 9-13 months;
4. For U.S citizen parents of children living in the United States – processing time is between 12-22 months;

• Delays can occur due to failure to respond to requests for further evidence, and
• A slight mistake can cost delays and, in some instances, even denials. That’s why it is crucial to be assisted by a specialized team.
  
• F2 (second preference) visa type, which includes spouses and unmarried children of permanent residents, has a limited number of visas issued each year, and its total amount is split into 2 categories: F2A (77%) – spouses and unmarried minor children of green card holders, and F2B (23%) – unmarried adult children of green card holders. 

A step-by-step guide to filing for a green card for a child under 21

Eligibility

Under the U.S. immigration law, permanent residents and citizens are allowed to bring their immigrant sons and daughters pursuing immigrant status to the United States or to adjust their current status.

Factors that determine eligibility are:

• Your legal status; 
• The marital status of your child;
• The age of your child

The USCIS defines “your child” for immigration purposes as:

• For the mother: the genetic child, the adopted child under the age of 18, or the child born out of Assisted Reproductive Technology.
• For the father: the genetic child, the legitimated child (the one born out of wedlock), the adopted child under the age of 18, or the child born out of Assisted Reproductive Technology.

Documents required

For the U.S citizen or Green Card holder (petitioner):

• Proof of legal status (U.S birth certificate, valid U.S passport, naturalization certificate, certificate of citizenship, foreign passport bearing a stamp of temporary permanent residence, or valid permanent resident card.
• Proof of relationship (child’s birth certificate, final adoption decree, or equivalent document).
• Child’s passport.

Filing Fee

USCIS charges $535 to file Form I-130. The fee can be paid by money order, personal check, cashier’s check, or credit card. Note that if you choose a credit card, you must use form G-1450 (Authorization for Credit Card Transactions).

You can always use the USCIS fee calculator to get the most updated filing fees.

Submitting Form I-130

Form I-130 can submit it online or by mail. To do it online, the petitioner must create an account at myaccount.uscis.dhs.gov. By creating this account, the petitioner will be able to submit forms, pay fees, track case status, communicate with USCIS, and respond to Request for Evidence (RFEs).

Ways to file an immigrant visa for your unmarried child under 21

U.S. citizen or permanent resident petitioning for a child already in the United States.

1. You must file Form I-130 (Petition for Alien Relative)
2. After the visa number is issued, your child must file Form I-485 (Application to Register Permanent Residence or Adjust Status).

U.S citizen or permanent resident petitioning for a child who is outside of the United States.

1. You must file Form I-130 (Petition for Alien Relative)If your child is already in the United States;
2. If your petition is approved, the USCIS will send the petition to the Department of State’s National Visa Center (NVC);
3. The NVC will notify you (petitioner) and your child (beneficiary) once the visa number becomes available and schedule your child for an interview.
4. After your visa is granted, the consular officer will provide the beneficiary with the Visa Packet, which should not be opened. 
5. The Visa Packet should be rendered to the U.S. Customs and Border Protection (CBP) Officer at the port of entry. The officer will then determine the beneficiary’s admission into the country as a lawful permanent resident.

The beneficiary will receive the green card in the mail after arriving in the United States.

What happens if my son or daughter turns 21 during the green card process?

This is the so-called”Aging Out” when your child turns 21 between the moment when Form I-130 (Petition for Alien Relative) is filed and its approval.

If there wasn’t for The Child Status Protection Act (CSPA), a child who turns 21 after filing I-130 would become ineligible for being sponsored by their parents.

The CSPA prevents children from “aging out” of eligibility for permanent residence in the United States. However, exceptions may apply.

The Child Status Protection Act was approved by Congress and went into effect on August 6, 2002. This Act aims to protect children from losing their eligibility in specific immigration processes due to USCIS delays.

The CSPA doesn’t redefine “child” for immigration purposes, but it determines a method to calculate the beneficiary’s age and see if they fit into the CSPA age, which allows people to remain considered as “child” for immigration purposes after turning 21 years old.

The Child Status Protection Act in practice

In cases where U.S citizens’ parents sponsor their children, the age of the beneficiary “freezes” the day the petitioner files Form I-130. In other words, as long as the child was under the age of 21 at the time that the Petition for Alien Relative was filed, the beneficiary will still be considered eligible as a “child” for immigration purposes. Therefore, the petition can’t be denied for age ineligibility.

In cases where permanent resident parents sponsor their children, the CSPA age is calculated by the length of time the Form I-130 was pending from the child’s age on the date the visa became available. In order to benefit from the CSPA provision, since it is a preference category, the beneficiary must seek to acquire permanent resident status within one year of the visa number becoming available.

If the petitioner becomes a U.S. citizen after filing Form I-130, the naturalization process of the parents converts the child’s petition into 1st preference category.

For these situations, we highly encourage you to have a team of experts to assist you and ensure the process goes flawlessly.

Turning 21 as a derivative beneficiary in Employment-Based Immigration situation – Form I-140

Due to massive backlogs and USCIS processing delays, children who were eligible for permanent residence as part of their parent employment-based applications and aged out during the process ended up losing their eligibility to get their Green Cards as derivative beneficiaries.

The Child Status Protection Act (CSPA) also protects children in this situation. CSPA provides a formula by which the applicant’s CSPA age is calculated that takes into account the amount of time the qualifying petition was pending. Furthermore, the applicant’s eligibility depends not only on the CSPA age calculation but also on whether the applicant sought to acquire lawful permanent residence within 1 year of visa availability

For this process, to ensure eligibility, it is crucial to file Form I-140 (Immigration Petition for Alien Worker) and Form I-485 (Application to Register Permanent Residence or Adjust Status) before the child turns 21 years.

Possibility of bringing your child to the U.S while the visa petition is pending

After Form I-130 is filed, the beneficiary is eligible to apply for the k-4 visa, a nonimmigrant type of visa that allows your child to work and study while waiting for green card approval.

To apply for a K-4 visa, the parent must file Form I-129F. Please note that this step is not mandatory and that your child can wait abroad if desired.

Issues if the child lives in the U.S without a legal status

Living in the United States without proper documentation and authorization can result in the person’s presence being classified as “unlawful.” Therefore, this can impose an inadmissibility issue when pursuing a green card.Unlawful Presence can result in a 3-10 time bar for a person to return to the United States. Fortunately, there is a waiver available for some applicants of Form I-130 that can suppress the 3-10 year bar. It is essential to know that to be eligible for this waiver. The person must not need a waiver for any other ground of inadmissibility.

Keeping track of your Child’s Green Card application status

If your child lives in the United States, you can check the status of their application online at the U.S. Citizenship and Immigration Services Case Status Online by providing the case Receipt Number. You can also schedule an in-person “infoPass” appointment at the USCIS office to check the status of your child’s application.

If your child lives abroad, the status of their application can be checked through the National Visa Center’s (NVC) “Consular Electronic Application Center” (CEAC). Note that the Department of State sends official notifications by mail, so it is crucial to maintain your address up to date in their system and check your mailbox frequently.

The application status can also be verified by phone, which applies to both in-country and abroad applications.