Immigration

Child of United States citizen

By December 18, 2016 No Comments

The Act of 1952 awards exemption from numerical re
strictions, 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 limita
tions 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 pur
poses 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 mar
riage of the child’s natural parents.

(4) Illegitimate child. For immigration purposes an
illegitimate child is to be regarded as the “child” of its
natural mother. Consequently the alien illegitimate child
of a United States citizen mother now is entitled to pre
ferred 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 defi
nition 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 ab
sence 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 statu
tory 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 re
quirements 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.

Francisco Hernandez

Author Francisco Hernandez

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