Child of United States citizen

The Act of 1952 awards exemption from numerical restrictions, as an “immediate relative,” to the alien child of a United States citizen.8 Definitions in the Act of 1952 and in its amendments have delineated a broad connotation of “child” under the immigration laws in order to preserve the family unit.

(1) Age and marital status. By definition a child includes only an unmarried person under the age of 21.9 A child excluded from immediate relative status by these limitations may be eligible for first or for fourth preference classification.

(2) Stepchild. The 1952 Act defines a child for immigra tion purposes as including a stepchild, if the child was under 18 at the time the marriage creating the status of stepchild occurred.10 The alien stepchild of a United States citizen thus is entitled to preferred status.

Congress in 1957 adopted a “clarifying” amendment specifying that the 1952 Act’s definition of stepchild applies whether or not the child was born out of wedlock.

(3) Legitimate child. The definition for immigration purposes of child also embraces a child born out of wedlock who is legitimated under the law of the child’s or the father’s residence or domicile, whether in or outside the United States, if such legitimation occurs while the child is under 18 and in the legal custody of the legitimating parent or parents.12 Legitimation means the grant of full legal status as a child, and usually is accomplished by marriage of the child’s natural parents.

(4) Illegitimate child. For immigration purposes an illegitimate child is to be regarded as the “child” of itsnatural mother. Consequently the alien illegitimate child of a United States citizen mother now is entitled to preferred status. An illegitimate child can claim no benefits through its father unless the child is legitimated. The con stitutionality of this exclusion has been upheld, in rejecting a contention that it constitutes an invidious and irrational discrimination, and thus denies due process of law.

(5) Adopted child. Under the amended statute, the definition of “child” has also been expanded to include a child adopted while under the age of 16, if the child thereafter has been in the legal custody of, and has resided with, the adopting parent or parents for at least 2 years. An alien child who meets these requirements can claim immediate relative status through an adopting parent who is a citizen of the United States. It should be noted that the natural parents of a child which qualifies as an adopted child or an orphan are precluded from claiming immigration bene fits on the basis of such relationship.

Adoption must conform with the law of the applicable place of residence or domicile.’6 In such situations, the im migration authorities frequently solicit advice from the Library of Congress regarding the legal requirements in particular countries, and rely on such advice in the absence of a persuasive showing to the contrary by the petitioner.

(6) Orphans. Special statutory provision is made for including a qualified orphan within the statutory definition of “child.”

In order to qualify as a “child” within the present statutory definition an orphan must be under the age of 16 at the time a visa petition is filed on his behalf, and must have been orphaned by the death, disappearance, or abandon ment of his parents. If one parent remains, that parent must be incapable of providing for the child and must in writing irrevocably release the child for emigration and adoption.

In addition, the child must have lawfully been adopted abroad by a United States citizen and spouse jointly or by aa unmarried American citizen at least 25 year s of age, or i f adopt ion has not yet occur red, a United States citizen and spouse jointly, or an unmarried Ameri can citizen at least 25 years of age, must satisfy the At torney General that they will adopt the orphan if he is admitted to this country, satisfying any preadoption requirements in the state of the orphan’s proposed residence.

The statute requires, in the case of an orphan adopted abroad, that the petitioner and spouse must have personally seen and observed the child before or during the adoption proceedings.

An orphan adopted abroad without having been personally seen and observed by the adoptive parents will be deemed a child coming to the United States for readoption, provided the petitioners undertake to readopt the child in this country and show such readoption is per missible in the appropriate jurisdiction in this country.18 The statute specifies also that the natural parent of any eligible orphan admitted to the United States shall not thereafter be accorded any immigration benefits based on such relationship.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez