Certain people can immigrate as the immediate relative of a U.S. citizen. A person qualifies as an immediate relative if they are the:
Examples: Alfredo is married to a U.S. citizen. Laura has a U.S. citizen son who is thirty years old. Kwan is twelve years old, and his father is a U.S. citizen. Alfredo, Laura, and Kwan are all immediate relatives.
Immediate relatives can immigrate very quickly without having to wait for a visa to be available, because visas are always available for immediate relatives. They can proceed to the second step as soon as their visa petition is approved, or if they are applying for adjustment of status, they can even submit their permanent resident application at the same time as the visa petition (see “One
<aside> ⚠️ NOTE: The Child Status Protection Act (CSPA) allows children of U.S. citizens who turn twenty-one while a parent’s visa petition is pending to immigrate as if they were still children, even though they no longer meet the definition of a “child” under the Act because they are over twenty-one years of age when the I-130 petition is finally approved.
For example, in the case of a lawful permanent resident (LPR) petitioner who naturalizes, the age of the child locks in on the date of the parent’s naturalization if the LPR parent had already filed a petition for that child. If the child is under twenty-one on that date, the petition will convert into an immediate relative petition and remain as such until the child immigrates. The CSPA rules are complicated, especially for the children of lawful permanent residents. See § 1.10 for a detailed explanation of the CSPA. In addition, the National Defense Authorization Act12 allows some children to maintain immediate relative status after turning twenty-one if they are children of deceased U.S. citizen or permanent resident members of the armed forces who died “as a result of an injury or disease incurred in or aggravated by combat.” The child must have been under twenty-one and unmarried at the time the parent died and must self-petition within two years of the parent’s death
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<aside> 📌 “One-Step” Adjustment Applications: Immediate relatives who qualify for adjustment of status under INA § 245(a) or § 245(i) can often submit the I-130 visa petition along with the adjustment application. See Chapter 3 for an in-depth discussion of adjustment of status.
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A separate visa petition must be filed for each immediate relative, and immediate relatives cannot include “derivative beneficiaries” (persons who follow-to-join or accompany the person being petitioned for) in their visa petitions. This means that if a U.S. citizen is petitioning their spouse and the spouse has a child, a separate immediate relative petition must be filed for the child. However, this is only the case for immediate relative spouses—immediate relative children or parents do not have the option of having their children independently petitioned for by the U.S. citizen petitioner. This is one reason why it is important to understand the rules about which relative qualifies under which category, such as who is considered a child and who is considered a spouse, and whether they are classified as “immediate relatives,” in order to understand how to properly include everyone who wants to, and is able to, immigrate along with the primary beneficiary.
<aside> 📌 NOTE: The following sections defining “child” and “spouse” apply to any reference to “child” or “spouse” in the INA and the regulations, including the sections regarding preference categories as well as immediate relatives.
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In all immigration work, remember that “child” is a term with a special legal meaning. See INA § 101(b)(1). Associate the word “child” with the technical legal definition. When referring to adult children (kids who have grown up), the INA uses the term “son or daughter.”
A “child” for immigration purposes is someone who is unmarried and less than twenty-one years old. A person who is divorced or widowed at the time of petitioning is considered unmarried and may therefore qualify as a “child” if they also meet the age requirement, even though they were married in the past.
Examples: A daughter who is twenty-one years old when her U.S. citizen parent’s petition is filed is not a “child” under the INA and cannot be petitioned for as an immediate relative. (She may, however, be able to immigrate as a “daughter” through a preference petition. See § 1.4 below). A married nineteen-year-old daughter is also not a “child.” But a nineteen-year-old divorced daughter is a “child” under the Act
Biological children who were born in wedlock are considered children under the immigration laws. Other children, such as stepchildren, adopted children, adopted orphans, and children born out of wedlock, may also qualify. These other children must meet specific additional requirements. Here is an overview of the other categories of “children”:
Stepchildren. A common situation involves stepchildren. This rule is simple. A stepchild is a child for immigration purposes if the marriage that creates the stepparent-stepchild relationship takes place before the child turns eighteen.
Example: Olga, a lawful permanent resident, marries Sandra. Sandra has a ten-year-old daughter, Teresa. Can Olga petition Teresa as her child?