A U.S. citizen may file a petition on behalf of qualified relatives, which include natural and adopted children and stepchildren, sons and daughters, parents. A lawful permanent resident (green card holder) can file a petition only for his or her spouse and unmarried children, sons and daughters.
The Immigration and Nationality Act defines a “child” as an unmarried child who is below 21. A child, who is below 18 when his or her parent marries a U.S. citizen, is regarded as the stepchild of the U.S. citizen for purposes of visa processing. An adopted child may benefit from an immediate relative petition if the adoption occurred before the child turned 16, the adoptive parent can prove that he or she has exercised parental control since the adoption took place and the adoptive parent has physically resided with the adopted child for, at least, a cumulative period of two years. The adoptive parent is not required to meet the two-year physical residence requirement when filing a petition for an orphan.
The terminology for a child who has turned 21 is a “son” or “daughter” according to the Immigration and Nationality Act.
Family-based immigrant petitions are classified as immediate relative petitions or preference petitions. The latter takes years to process because the beneficiary must wait for the priority date to be reached before becoming eligible to proceed with adjustment of status (if presently residing in the United States) or consular processing (if residing outside the United States).
Family-based immigrant petitions are automatically reclassified when certain situations arise. For example, when an unmarried son or daughter who is the beneficiary of a family-based first preference (F-1) petition gets married, he or she is automatically reclassified to fall under the family-based third preference (F-3) classification. The Child Status Protection Act (CSPA) provides that a previously married child who falls under the F-3 classification who is under below 21 when the divorce happens is reclassified as an immediate relative and the age is frozen so that the beneficiary remains a “child” even if he/she reaches 21 during the processing of the application for the visa through adjustment of status or consular processing.
The petitioner in a family-based immigrant petition is always required to file an affidavit of support. Because of the lengthy process for petitions under the preference system, challenge arises when the petitioner dies. Qualified relatives may be substituted to file the affidavit of support while requesting for a humanitarian reinstatement of the approved petition (which is automatically revoked upon the death of the petitioner). The beneficiary who is physically present in the United States at the time of the petitioner’s death may qualify for adjustment of status under the Surviving Relatives Law.
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