Published December 1, 2020
By: Richard Hanus, Esq.
A foreign national has more than a few ways available to facilitate lawful permanent residence, aka “green card” status, for their child. The exact path the process takes depends on a variety of factors, including whether the child’s parent is a U.S. citizen, a lawful permanent resident or is just in the process of obtaining permanent resident status. Also important is whether the child being petitioned is under 21 years of age at the time of a visa petition and how soon they will turn 21, factors that will determine the ultimate timeline for processing, start to finish.
Parent is a U.S. citizen or lawful permanent resident: A U.S. citizen or lawful permanent resident of a foreign national initiates the green card process for their child by way of an I-130 visa petition. If the child is under the age of 21 at the start, the process can be completed in a period of 6-12 months for children of U.S. citizens and 1 to 3 years for children of lawful permanent residents. Children over the age of 21, may face a considerably longer timeline, although much depends on the exact point they turned 21 years of age, whether prior to the start of the process, or while the case is pending.
Importantly, a step-parent who is a U.S. citizen or lawful permanent resident is able to petition their foreign national step-child, as long as the marriage creating the step relationship took place prior to the child turning 18 years of age. A qualifying step parent’s petition is treated no differently than a biological parent’s filing.
Prior to embarking on the I-130 visa petition process for a child, however, any parent who was a U.S. citizen at the time their child was born outside the U.S. should explore the extent to which the foreign-born child at issue qualifies to acquire U.S. citizenship at birth. Under the right circumstances, a U.S. citizen parent can transmit U.S. citizenship on to their foreign born child at the moment of the child’s birth, but only if the parent resided in the U.S. for a specified, qualifying period prior to the child’s birth.
Parent is in the process of obtaining U.S. residence: Another avenue through which a foreign national child can obtain a green card, is within the same process their parent obtains their own resident status. Specifically, when an adult foreign national is petitioned for lawful permanent resident status by a U.S. family member or an employer, the petitioned individual can include their spouse (excluding those petitioned in the Family First, and Second/2B Preferences) along with under 21 year old children as derivative beneficiaries.
Final stage of processing for lawful permanent resident status can take place either at a U.S. consular post abroad by way of an immigrant visa application, or if the subject child is in the U.S. already, before a U.S. Department of Homeland Security/Citizenship and Immigration Services office by way of an application for adjustment of status. Eligibility to proceed with the latter stage in the U.S. will depend on whether the foreign national child has maintained legal nonimmigrant status while staying in the U.S., among other factors.
In light of the various options at play, to determine the best steps to take for your foreign national child’s green card process, it is advisable to consult with an experienced immigration attorney, such as Richard Hanus of the Law Offices of Richard Hanus. That way you will be sure to move forward with an informed decision and one that will yield the best possible result for you and your family’s particular circumstances.
PUBLISHED December 1, 2020– “IMMIGRATION LAW FORUM” Copyright © 2020, By Law Offices of Richard Hanus, Chicago, Illinois
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