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I-130 PETITION FOR A CHILD

The US citizens and Lawful Permanent Residents  can file Petition for Alien Relative, Form I-130, on behalf on her child.  INA 101(b) defines “child” as  an unmarried person under twenty-one years of age who is-

(A) a child born in wedlock; or
(B) a stepchild,  provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or
(C) a child legitimated under the law of the other jurisdiction; or
(D) a child born out of wedlock, but a biological parent has or had a bona fide parent-child relationship with the person; or
(E) a child adopted.

The Petition should be accompanies by child’s birth certificate, US birth certificate or Naturalization certificate.

Does a person need to File a Separate Form I-130 for a child when he is Petitioning for the child’s Parent as well?

A U.S. citizen petitioning for a spouse and for her children  needs to file separate Forms I-130 for each person.

However, if, a lawful permanent resident petitioning for a spouse, and for her children, the petitioner needs to file a single Form I-130 for the spouse and include the children.

Yes, there is no logic here. But it is what it is.

CHILD OF A U.S. CITIZEN

Congress recognized that many children beneficiaries turn 21 (aging out)  while their parents’ I-130 Petitions were pending with USCIS  due to backlogs and long processing times for visa petitions.  In 2002 the Congress pass the “Child Status Protection Act” (CSPA) that has changed the way the child’s age had been calculated.

The child’s age freezes  on the date that the US citizen parent files an I-130 visa petition for the child, and the child’s age remains the same during the adjudication process. So if the USCIS issues its decision when a person is over 21 years of age, her case would be adjudicated as if she is still under 21. So child will be processes as immediate relative.

CHILD OF PERMANENT RESIDENT WHO BECOMES A U.S. CITIZEN

The Lawful Permanent Resident can also file for his child. The case will fall under under the Family 2A preference category – Spouses and Children of Permanent Residents.

Now, what happens when the petitioner naturalizes?  The age of the child will freeze on the date of the parent’s naturalization. It is child’s biological age that is “locked in” not the adjusted age.

  • If the child is still under 21 on the parent’s naturalization date, the petition will be converted to an immediate relative petition.
  • If the child’s biological age is over 21 on the  parent’s naturalization date, she will become an adult child of a U.S. citizen and the visa petition will be converted to the family 1st preference category. (F1) Unmarried Sons and Daughters of U.S. Citizens. If the beneficiary was assigned a priority date prior to the conversion of the petition, he or she will maintain that priority date after the conversion.
    The child can choose to “opt out” of this conversion and remain in the family 2B category. The beneficiary needs notify NVC if he or she wants to opt-out.
  • However, if the parent  had not naturalized   the CSPA age-adjustment formula should be used to determine child’s age and she could  have been in  family 2A category.

It is very important to time naturalization to avoid the potential adverse consequences that a parent’s naturalization could have on a beneficiary child.

CHILD OF US CITIZEN CHANGES HER LEGAL STATUS

The US citizen parent my file a visa petition for a married son or daughter. This case fells under the third preference, (F3 Married Sons and Daughters of U.S. Citizen.)

What happens when son or daughter gets legally divorced while petition is pending?  The son or daughter’s age will freeze on the date that the marriage is legally terminated.

  • If son or daughter’s age is under 21, the petition will be converted to an immediate relative petition.
  • If a beneficiary who initially fell within the immediate relative category but who aged out and were converted to the family 1st preference category and who, under the CSPA, are again eligible for immediate relative status, may opt out of a conversion back to immediate relative.

Note, that immediate relatives are not allowed to include their children as derivatives but beneficiaries under preference categories can. So it is important to determine what is the best for every beneficiary.

CHILD OF GREEN CARD HOLDER  OR DERIVATIVE CHILD OF FAMILY-BASED, EMPLOYMENT-BASED, OR DIVERSITY VISA

When Green card holder files I-130 Petition for a child, the child would have to wait until a visa becomes available based on his priority date.  Child’s age will freeze as of the date that a visa number becomes available for the petition in question reduced by the number of days that the petition was pending, but only if the child seeks to acquire the status.

How to calculate a child’s age?

First step: determine the child’s adjusted age based on USA Patriot Act.

Child’s biological date is either:

  1. child’s date of birth or
  2. if the I-130 petition for a child was filed before September 11, 2001 and
  • child turned 21 during  September 2001, the biological date will be child’s Date of Birth plus 90 days.
  • child turned 21  after September 2001, the biological date will be child’s Date of Birth plus 90 days.

Step 2: determine when a visa number has become available.

If when the petition is approved the visa is current then the approval date is considered the date when visa became available. Otherwise, it is the first day of the month that the  Visa Bulletin posts that the priority date has been reached.

If  I-485, Adjustment of Status Application is filed when the the visa was available and later a visa availability date retrogresses, the beneficiary’s age will be calculated based on the earlier visa availability date. However,  if the I-485 is filed after the visa availability date retrogresses but before one year of when the visa availability date again becomes current, the beneficiary’s age is calculated using the second visa availability date.

Step 3: determine child’s age on the date visa becomes available

Subtract child’s adjusted age from the time when visa became available, so a result from Step 1 subtract from a result from Step 2.

Step 4:  determine how long a visa petition has been pending.

  • For family-sponsored cases, the date that an approval is issued and the receipt date (also the priority date).
  • For employment-based cases,   the date that an approval is issued and  the date the I-140 visa petition is filed (the receipt date).
  • For derivative of a diversity visa, a petition is considered pending between the first day of the diversity visa mail-in application period for the program year in which the principal has qualified and the date on the letter notifying the principal applicant that the application was selected.

Now, do your math. Subtract the length from Step 4 from a child’s age on the date visa becomes available. This is child’s age for the purpose of for determining the age of the child beneficiary—either direct or derivative—of a family-sponsored or employment-based visa petition or of a diversity visa application under the CSPA. Children who pass 21 years of age after original USCIS approval of the petition lose eligibility to accompany or later join the applicant(s) immigrating to the United States under the original petition.

Last step: determine whether the beneficiary sought LPR status within one year of the visa availability date (or if the one year is not yet over, ensure that the child beneficiary takes the necessary steps). It is called “sought to acquire” criterion. The child’s age will freeze only if the beneficiary has “sought to acquire” the status of an LPR within one year of the visa availability.

an individual could satisfy the “sought to acquire” provision by either

  • filing an adjustment application, i.e. Form I-485 Adjustment of Status if the child is in the U.S.
  • or Form DS 230, Part I is submitted by the child, or by the child’s parent on the child’s behalf if the child is outside of the U.S. or
  • showing that there were extraordinary circumstances preventing the applicant from filing within the one year period, particularly where the timely failure to file was beyond the applicant’s control.

  USCIS will require an applicant to show three things in order to demonstrate “extraordinary circumstances:”
(1) The circumstances were not created by the applicant through his own action or inaction;
(2) The circumstances were directly related to his failure to file the application within the one year period; and
(3) The delay was reasonable under the circumstances. USCIS provides a non-exhaustive list of examples of extraordinary circumstances that may warrant an exception to the one year “sought to acquire” requirement.

RETENTION OF PRIORITY DATE FOR AGED-OUT BENEFICIARIES FOR CHILDREN OF LAWFUL PERMANENT RESIDENTS 

If the beneficiary who is child of a permanent resident or derivative beneficiaries is determined to be over 21 and considered “aged-out” then

  1.  he or she will be automatically moved to appropriate category, and
  2. he or she will be able to keep the earliest priority date which is the original priority date issued upon receipt of the original petition.

Exception: an automatic conversion and the priority date retention does not apply to derivatives of Brothers and Sisters of Adult U.S. Citizens.