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Family-based Immigration: Petitioning for a son or daughter

Brandon Gillin, Immigration Lawyer at Genesis Law Firm

by Brandon Gillin, Immigration Lawyer at Genesis Law Firm

There are several methods to petition for the immigration of a son or daughter.  It is important to note that not everyone is eligible to petition under every method; rather, eligibility depends on many different factors.  Read each method, and determine which method suits your situation.  The methods are as follows:

  • The “immediate relative” method.  Under this method, the U.S. citizen parent or stepparent may file a petition with United States Citizenship and Immigration Service (“USCIS”) for his/her son or daughter.  That seems straightforward enough, but there are several caveats to be aware of.  First, in order to qualify as a stepparent, your spouse’s son or daughter must be under 18 years old.  Specifically, a “stepchild” is a “child” whether or not born out of wedlock, provided the child had not reached the age of 18 years at the time the marriage creating the status of stepchild occurred.” 8 U.S.C.A. § 1101(b)(1)(B).  Since a stepchild may be petitioned by his/her stepparent, there are situations in which that child’s natural parent may no longer be able to petition for his/her own child, since that child has become the stepchild of the stepparent.  In other words, if your son or daughter is the stepchild of someone and you want to petition for him/her, you may be precluded from doing so.Adopted children are also eligible to be petitioned for.  Note, however, that the adoption must have occurred before the son or daughter was 16 years old and the adopted child must have spent 2 years of residence in legal custody of the adopting parent before the age of 16.
  • The “first preference” method.  This method provides that a U.S. citizen may petition for their unmarried son or daughter over the age of 21.  This method is subject to the numerical limit of visas available annually.  Currently, the basic quota availability in this preference category is 23,400 per year.  To obtain the most up to date information, review the latest Visa Bulletin offered by the U.S. Department of State – Bureau of Consular Affairs.
  • The “second preference” method.  This method provides that a U.S. Legal Permanent Resident may petition for their unmarried son or daughter, regardless of their age.  Significantly, in order to remain eligible under this preference category, the son or daughter must not only be unmarried when their visa petition is approved, but also when they are admitted to the U.S.  Currently, the basic quota availability in this preference category is 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers. To obtain the most up to date information, review the latest Visa Bulletin offered by the U.S. Department of State – Bureau of Consular Affairs.
  • The “third preference” method.  This method provides that U.S. citizens may petition for their married son or daughter.  Importantly, under this method, the married son or daughter may have a derivative spouse or children. 8 U.S.C.A. § 1153(h).  Currently, the basic quota availability in this preference category is 23,400 per year.  To obtain the most up to date information, review the latest Visa Bulletin offered by the U.S. Department of State – Bureau of Consular Affairs.

This article by no means covers all the information that is needed to determine if you are eligible to petition for your son or daughter.  To obtain information on your own situation, you should consult with a U.S. immigration attorney.

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