A U.S. citizen may file a petition on behalf of qualified relatives, which include natural and adopted children and stepchildren, sons and daughters, and 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 a cumulative period of at least two years. The adoptive parent is not required to meet the two-year physical residence requirement when filing a petition for an orphan.
A child who has turned 21 is referred to as a “son” or “daughter” under 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 the immigration status of the petitioner or marital status of the beneficiary changes. 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. Under the Child Status Protection Act (CSPA) when a previously married child who falls under the F-3 classification and under 21 when the divorce happens, the petition is reclassified as an immediate relative. The age is frozen so that the beneficiary remains a “child” even if he/she reaches 21 during the visa application process through adjustment of status or consular processing.
The petitioner in a family-based immigrant petition is always required to file an affidavit of support. In the past, the death of the petitioner resulted in the revocation of the approved petition. This sad situation has been altered by the current Surviving Relatives Law. Now the petition may be transferred to a new petitioner deemed eligible by Section 245(l), the Surviving Relatives Law. Qualified relatives may be substituted to file the affidavit of support while requesting 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.