Definition of “Child” Under U.S. Immigration Law and Related Immigration Issues

Under U.S. immigration law, biological children, stepchildren, adopted children, and illegitimate children generally enjoy the same immigration benefits, though some distinctions apply in specific circumstances. Below are several key legal concepts:

Biological Child

• Legitimate Child:A child born after the parents are legally married is categorized as a legitimate child under immigration law.

• Legitimated Child:Under what circumstances is a child considered a legitimated child? Immigration law stipulates that if the biological parents marry before the child turns 18, the child is considered legitimated. When applying to bring such a child to the U.S., the parents must provide a marriage certificate showing the marriage occurred before the child’s 18th birthday.

Illegitimate Child (Born Out of Wedlock)

If you are a U.S. citizen or lawful permanent resident (green card holder), you may petition for your illegitimate child, provided the child is under 21 years old and unmarried. From an immigration standpoint, illegitimate children have the same rights as legitimate children, as long as a biological parent-child relationship exists.

However, the required documentation differs depending on whether the mother or father is the petitioner.

• If the mother files the petition, no proof of legal relationship is required.

• If the father files, the petition must meet one of the following:

  a. Before the child turns 18, the father has become the child’s legal guardian, or

  b. While the child is under 21 and unmarried, the father has established a genuine father-child relationship.

If legal legitimation was not completed before the child turned 18, the father must provide evidence of a real and continuous parental relationship before the child turned 21. Such evidence may include:

• Living with the child, providing care, and other signs of ongoing support for the child’s well-being and health. The father must demonstrate emotional and financial involvement with the child.

• If the father left shortly after the child’s birth, this may be more difficult. USCIS prefers to see financial support documentation like remittance receipts or checks.

• In addition to financial proof, letters to the child’s teacher inquiring about their education, letters written to the child, etc., may serve as good evidence of emotional support.

Only by submitting sufficient evidence of a real parental relationship will USCIS approve a petition filed by a father for his illegitimate child.

DNA paternity test reports issued by USCIS-approved facilities are usually required when a father files for an illegitimate child.

Adopted Child

U.S. immigration law states that you must complete the adoption process before the child turns 16 to petition for their immigration.

If the adoption was finalized before age 16, the following documents are required:

1. Proof of your citizenship or lawful permanent residency;

2. Domestic adoption approval from the child’s home country;

3. The child’s birth certificate showing adoption occurred before age 16;

4. Proof of legal custody and two years of cohabitation with the child. Proof of cohabitation includes written affidavits from credible witnesses. USCIS may ask about daily living arrangements during the two-year co-residency and must confirm that the child did not live with their biological parents during this time.

Important note: A child who immigrates to the U.S. as an adopted child may not later sponsor their biological parents for immigration under any circumstances.

Orphan

Under U.S. immigration law, a foreign-born child qualifies as an orphan if both parents are deceased or missing, or if the child has been abandoned, separated, or lost. If a single parent is unable to care for the child, or formally relinquishes custody for adoption and immigration purposes without the intent to reverse it, the child qualifies as an orphan.

To qualify for immigration benefits, an orphan petition must be filed before the child turns 16. If a sibling of the orphan is adopted by the same parents at the same time or afterward and is under 18, they also qualify as an orphan.

Stepchild

If your remarriage occurred before the child turned 18, your child is considered the stepchild of your new spouse under immigration law, and thus qualifies as the spouse’s child.

A. If your spouse is a U.S. citizen, they may directly petition for your child through child immigration, but a separate petition must be filed for each stepchild. The child cannot be included in your petition.

B. If your spouse is a lawful permanent resident, and the child is under 21, the child qualifies as an accompanying immigrant and may be included in your marriage-based petition, without needing a separate application.

C. If your remarriage occurred after the child turned 18, the child is not considered a stepchild under immigration law. Your spouse cannot petition for the child as a relative. You must wait until you obtain a green card to file as the child’s biological parent.

D. Exception: If the child is between 18 and 21 and your fiancé(e) is a U.S. citizen, you may apply for a K-1 visa to enter the U.S. and marry, and your child may apply for a K-2 visa as your dependent. If the child enters the U.S. before turning 21, and you marry within 90 days, both you and your child can adjust status to green card holders. Since this adjustment process is not part of family-based immigration, the stepchild definition restriction does not apply. This is a very useful workaround for children who would otherwise age out due to a late remarriage.

Automatic Citizenship for Children

Minor children of U.S. citizens who immigrate to the U.S. may automatically acquire U.S. citizenship, without needing to complete the usual five-year green card period required for naturalization. Unfortunately, stepchildren are not eligible for this benefit.

Handling F2A Petitions After the Petitioner Naturalizes

When a lawful permanent resident becomes a U.S. citizen, all previously filed F2A petitions (for a spouse or unmarried children under 21) are automatically converted to IR1/CR1 (spouse of a U.S. citizen) or IR2/CR2 (child of a U.S. citizen). These visa categories are not subject to quotas, and eligible beneficiaries may be issued visas immediately.

However, IR1/CR1 petitions do not allow accompanying family members, so if the F2A petition included both spouse and children, the children will no longer be eligible under that petition after the sponsor becomes a U.S. citizen.

Although F2A allows unmarried children under 21 to immigrate as derivatives of their parent’s petition, it is strongly recommended that the U.S. petitioner file a separate I-130 for each family member, to preserve the child’s immigration eligibility in case of naturalization before the visa is issued.

“Aging Out” of Children

Under U.S. immigration law, a child who turns 21 is considered an adult child. Only unmarried children under 21 qualify as minor children. In family-based immigration, age 21 is a critical cutoff. The child’s age at the time of application determines their immigration category:

• U.S. citizen's minor child: Immediate relative (no quota or wait time)

• U.S. citizen's adult child: F1 category (quota and backlog apply)

• Permanent resident's minor child: F2A category (quota and backlog apply)

• Permanent resident's adult child: F2B category (quota and backlog apply)

• U.S. citizen's married child: F3 category (quota and backlog apply)

Priority order (from fastest to slowest):F2A > F1 > F2B > F3 — the earlier the priority, the shorter the wait.

In reality, USCIS processing times vary greatly due to background checks, case volume, and other factors. Some cases may take months, others years. Children may age out while waiting for USCIS approval or for a visa number to become available, which significantly alters their category and increases wait times. For example, a child classified as F2A at filing may turn 21 during the process and be reclassified to F2B, delaying their immigration by years.

Child Status Protection Act (CSPA)

To mitigate these adverse effects, USCIS implemented the Child Status Protection Act (CSPA). Under certain conditions, even if a child is over 21 biologically, they may still be treated as a minor child under immigration law, thus avoiding delays in visa processing.

(Disclaimer: The information released is for information only and should not be construed as legal advice or a basis for decisions on any topic. All rights reserved. Reproduction requires permission from Allbelief Law Firm.)