For the purposes of immigration law, the Immigration and Nationality Act (INA) and the United States Code (U.S.C.) have laid out a detailed list of qualifications that establish the definition of a “child” under the laws. This definition is meant to serve as a guideline for aliens who wish to come to the United States with their children. The law provides various descriptions of who will be recognized as a child under U.S. Immigration Law, as well as the necessary steps that aliens and U.S. citizens can take to establish a legal parent/step-parent relationship and/or legal guardianship of a child, so that the child can receive the benefits associated with immigration law.

Definition of a Child

According to INA 101(b) (1) and 8 U.S.C. 1101(b)(1), a child is defined as: an “unmarried person under 21 years of age who is a:

Child born In-Wedlock (meaning that the child was born to two married individuals) [INA 101(b)(1)(A), (D); 8 U.S.C. 1101(b)(1)(A), (D)]:

• If the child is born in wedlock the parent need only prove that the familial parent/child relationship is legitimate. The parent/child relationship can be proven through the presentation of the child’s birth certificate, medical or school records, or a paternity test.
  • Example: Emily and John get married and after the marriage, they have a daughter named Nancy. Under immigration law, Nancy would be eligible to receive immigration benefits.

Child born Out-of-Wedlock (meaning that the child was born to two individuals who are not married at the time of birth) [INA 101(b)(1)(A), (D); 8 U.S.C. 1101(b)(1)(A), (D)]:

• If the child is born out-of-wedlock and the relationship is with the mother because of separation or if the natural father has abandoned or relinquished his parental rights over the child, then no further steps need to be taken.
  • Example: Mary is a legal permanent resident and Jack came over to the U.S. on an F-1 visa from England. They were not married at the time their son, Bill, was born. After his birth, Jack and Mary separated and Mary took over sole custody of their son. Therefore, under immigration law, Bill would only be considered the “child” of Mary and would be eligible to immigration benefits and would not be able to receive or provide any immigration benefits to his natural father.
• If the child is born out-of-wedlock and the child’s relationship is with the father because of separation or if the natural mother has abandoned or relinquished her parental rights over the child, then the father must have legal custody of the child and be his/her natural father, and a bona fide parent-child relationship must exist. This relationship can be proven through a paternity test, birth certificate, and/or medical/school records.
• Children born out-of-wedlock previously could only obtain benefits through the mother. The Immigration Reform and Control Act (IRCA) of 1986 amended the INA, so that a child could now obtain benefits through the natural father if a bona fide parent-child relationship existed when the child was younger than 21 years of age and not married. Applies to all bias petitions filed after IRCA’s effective date, even if the child is over 21
• A bona fide parent-child relationship exists where the father demonstrates or has demonstrated an active concern for the child’s support, instruction, and general welfare. [8 C.F.R. 204.2(d)(2)(iii)]
  • Example: Using the same example as above; however, Jack and Mary separated after the birth of their son Bill and Mary abandoned Jack and her son. As a result, Jack plans to apply for a change of status and Jack took over sole custody of his son, Bill. Thus, in order for Bill to be eligible to receive benefits under immigration law, Jack would have to provide evidence that he has a bona fide parent-child relationship with Bill. The evidence that Jack could use are: a paternity test, birth certificate, and/or money orders or checks illustrating his concern for Bill’s well-being and education.

Step Child [INA 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B)]: Step-child,  as long as the child was under 18 when step-relationship was created, meaning that the natural parent and step-parent were married before the child turned 18 years of age:

• In situations where the natural mother and/or father is an LPR, but the step-parent is a USC, the child can avoid family 2d preference backlog through the step-parent’s petition.
  • Example: Andrew is a U.S. citizen and Stephanie is an alien from France. Stephanie has a child, named John who is younger than 18 years of age, from a previous marriage that she has custody over. Therefore, if Andrew and Stephanie get married before John turns 18 years of age, Andrew will be able to establish a legal step-parent/child relationship with John.

Normally, a step-relationship terminates when a marriage ends, especially if it ends in divorce. [Matter of Simicevic, AFM 21.4 (d)(2)(B)] However, under certain circumstances, a step-relationship may continue after the death of the natural parent or even after the legal separation or divorce of the step-parent and the natural parent if there is an ongoing relationship between the step-parent and the step-child. If the marriage ends in annulment, however, the step relationship is deemed to have never existed because, legally, the marriage never existed. [Matter of Pagnerre, Matter of Mowrer, and Matter of Mourillon]

Legitimated Child:

Legitimation is defined as “the act of putting a child born out-of-wedlock in the same legal position as a child born in wedlock.” The act of legitimation can only be taken by the natural father of the child in situations where the child’s natural mother and father are separated or she has abandoned, deserted, or relinquished the parental rights over the child. In order for the beneficiary to be eligible to receive immigration benefits, the father must follow the necessary legal procedure to establish the beneficiary as the legal “child” of the petitioner under Immigration Law.

The difference between a legitimated child and a child born out-of-wedlock is that in the case of a child born out-of-wedlock the father must have custody of the child, must be the natural father of the child, and must provide evidence of a bona fide parent-child relationship. However, in the case of a legitimated child, the father must have custody of the child, must be natural father, and must complete the steps following legitimation steps provided under immigration law.

There are four requirements that must be met in order for a child to be legitimized under immigration law [INA 101 (b) (1) (C)]:

• Action to legitimate the child must fall under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile;
• The child must be under 18 at the time of legitimation;
• The father must have legal custody of the child at the time of legitimation, physical custody alone will not satisfy this requirement; and
• The child must be the natural child of the father. Paternity may be established by primary evidence (a birth certificate)or secondary evidence (medical or school records, or blood tests).

Once the above requirements are met, the father can then take the necessary steps to legitimate the child. The following are the various methods that can be taken in the legitimation process:

• Abiding by the laws of the country or state of the child or father’s domicile or residence that eliminate all legal distinctions;
• Subsequent marriage of natural parents;
• Judicial decree;
• Formal recognition of paternity; and/or
• Open/notorious acknowledgment of paternity.

Adopted Child [INA 101 (b)(1)(E)]:

Children adopted before 16, and having 2 years legal custody and residence with adopting parent. However, if the family has already adopted a sibling, the second brother or sister who is adopted may be under 18 at time of adoption.

In order for an adopted child to be considered under Immigration Law, the adoption must occur before the child turns 16 years of age, and must be coupled with 2 years of legal custody with the adopting parent and reside with the adopting parent for 2 years.

Furthermore, the two year custody and residency requirements may be satisfied before or after the legal custody or adoption, by either parent. Meeting the two year legal custody requirement requires either the final adoption decree or official documentation in the form of a custody award by the court or recognized government entity. This requirement must be satisfied through an official action at a recognized government entity between the natural parent(s) and the adopting parent. Informal documents, such as sworn affidavits, are insufficient.

Moreover, the natural parents of an adopted child cannot obtain immigration benefits through the natural child if the child was adopted in accordance under the provisions listed above. This is different than step-children, however, who can petition for their natural parent. If the adopted child did not and cannot acquire any immigration benefits through the adoptive parents, the natural parents may be able to petition for the child. The adopted child, also, cannot petition for their natural siblings if the child was adopted in accordance to the provisions listed above. However, if the relationship between the adopted parent and the child end, then the custody of the child goes back to the natural parent or to the state/country if the child was an orphan prior to the adoption.

Orphans [INA 101(b)(1)(F)]:

Under Immigration law, certain orphans may be classified as “children” and receive immigration benefits. According to the INA, orphans do not have to meet the same two year residency/legal custody requirement as adopted children. However, the INA does establish certain criteria that must be met, in order for the orphan to be considered a child:

• Adoption must occur while the child is under the age of 16;
• The child must have been orphaned by reason of death, disappearance, abandonment and/or desertion, separation, or loss of both parents;
  • Abandonment requires that the parents forsake all parental rights. Abandonment by both parents means that the parents have willfully forsake all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer or without transferring these rights to any other specific person(s)
  • If the child only has one parent, then the only requirement is that he/she must be incapable of providing proper care and irrevocably release the child in writing [8 C.F.R. 204.3 (d)(1)(iii)(C)]
  • If the child is born out-of-wedlock, then the child shall be treated as only having one parent
  • Adoption must be by a husband and wife or by a single parent at least 25 years of age. [8 C.F.R. 204.3 (b)].
• If there are step-parents, the family shall be treated as if there are 2 parents for the sake of satisfying the requirements for orphans.
• There are no limitations on the number of orphans a person can adopt.
• USCIS must be satisfied that there will be proper care for the child. The home study requirement conducted by the USCIS includes an analysis of the parents’ capabilities and living conditions. Also, the study includes history of any substance abuse, sexual or child abuse or domestic violence, even if there was no arrest or conviction.

The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption [8 C.F.R. 204.3(k)(2)]:

The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption is an international convention dealing with international adoption, child laundering, and child trafficking. The objectives of the convention were to (1) establish safeguards to ensure that inter-country adoptions take place in the best interests of children and with the respect for the child’s fundamental rights; (2) establish a system of co-operation amongst the participating countries to ensure that those safeguard are respected; thus, preventing the abduction, sale of, or traffic of children; and (3) to secure the recognition of the adoptions made in the participating countries in accordance with the convention. The conditions of the Hague Convention apply to adoptions that occur after April 1, 2008. For more information about The Hague Convention and the participating countries, please click here

The conditions for adoption are as follows:

• For orphans in non-Hague Countries, the adoption, general, must occur abroad; although, an orphan may come to the U.S. to be adopted, in certain circumstances.
• If the orphan is already in the U.S., then he/she is not considered an orphan, but rather an adopted child
• A child in the U.S., either illegally or as a non-immigrant, is ineligible for the benefits of an orphan petition, but a parolee may be eligible. Under the Hague Convention, the child can be in the U.S. on a non-immigrant visa holder, parolee, or even an EWI, but is not allowed to adjust status unless otherwise informed of eligibility and the Central Authority of the other country approved the adoption.

For countries participating in the Hague Convention [INA 101 (b)(1)(G)]:

• Only a married U.S. citizen whose spouse also adopts the child or an unmarried U.S. citizen who is 25 or older may adopt a child from a participating Hague Country. Legal Permanent Residents are not eligible to adopt Hague Country children.
• The visa petition that will be used to bring the child to the U.S. must be filed before the child’s 16th birthday.
• The 2 year legal custody and 2 year joint residence requirements do not apply as in non-orphan adoption cases.
• The child must be adopted abroad.
• The adopting parent(s) must habitually reside in the United States and the child must be a habitual resident of The Hague Convention country. [INA 204(d)(2)]
• The child’s birth parent(s) and/or any other persons who retain legal custody of the child:
• Must have freely given their written and irrevocable consent to the termination of their legal relationship with the child and to the child’s emigration and adoption; and
• In the case of a child placed for adoption by both living birth parents, both parents are incapable of providing proper care for the child.

Procedures Under the Convention:

• USCIS must first determine that the U.S. citizen adopter(s) is/are suitable, adoptive parent(s) before the authorities in the country abroad place the child with the U.S. citizen(s) and the country abroad must agree that the adoption is in the best interests of the child. The U.S. must then decide before the adoption that it will meet the requirements of the convention and U.S. immigration law.
• Applications for adoption under the Convention are filed on Forms I-800 (the petition) and I-800A (the Application for Determination of Suitability to Adopt). The I-800A must be approved before the approval of the I-800. Both forms must be approved before the adoption can take place and also before the foreign country can make a determination on whether the child will be able to immigrate. [8 C.F.R. 204.309(b)(1)]
• Through the Child Citizenship Act of 2000, orphans who are adopted abroad prior to the issuance of the immigrant visa are immediately eligible for U.S. citizenship; therefore, the I-864 Affidavit of Support is not required.

Problem Areas:

• A child born as the result of an adulterous relationship may still qualify as a step-child if the child is legally adopted by the age of 16. [Matter of Stultz]
• Example: Joe, who is a legal permanent resident, and his wife Alice, who is a U.S. citizen, are married and live in the United States. In2011, Joe went on a business trip to France and while there he met a woman named Jackie, and had an affair with her. As a result of the affair, Joe and Jackie had a son named William. However, Jackie abandoned William and he was left in the care of his father, Joe. When Joe returned to the United States, he informed his wife of the affair. Although Joe is the biological father of William, Alice, under immigration law, would not be considered William’s mother. However, as long as William resides with Alice for two years and Joe has legal custody of William for two years, and Alice files to adopt William, a legal parent-child relationship could be established between Alice and William. As a result, William could receive immigration benefits.
• Effect of Step parent divorce: If step relationship continues, petition is valid, notwithstanding divorce. The same is true for step-siblings
• USC may petition for natural parent and step parent
• Citizenship: in Matter of Guzman-Gomez, the court concluded that step children are precluded from receiving citizenship under INA 101(c) through the naturalization of their step parent because INA does not include a step-child in the definition of a child as does OMA 101(b) which pertains to visa issuance.

In Conclusion

As illustrated above, there are several provisions that govern whether an individual will be treated as a “child” under Immigration Law. If these provisions are met, then the “child” may be eligible to receive certain benefits that are associated with immigration to the United States. Since immigration law can often present complicated matters, it is best to consult with a legal professional to determine the best course of action when trying to obtain immigration benefits for oneself and/or one’s children.

Author: Cameron Allison (cameron.allison@hooyou.com)

For more information on Adoption, please visit the following links:

• US Based Adoption
• Adoption Abroad
• The Definition of a Child according to U.S. Immigration Law