(a) Eligibility Requirements.

A visa petition may be filed on behalf of a child (i.e., a person meeting the definition contained in paragraphs (A) through (E) of section 101(b)(1) of the Act) by either a citizen or lawful permanent resident of the U.S. A citizen and, in certain circumstances a LPR, may file a visa petition on behalf of a son or daughter (i.e., a person who at one time was able to meet the definition of “child” as set forth in section 101(b)(1) of the Act. A citizen may also file an I-130 petition for an orphan as define d in paragraph (E) of that section, but a lawful permanent resident may not. (See Chapter 21.5 of this field manual.)

(b) Form and Filing Issues.

Form I-130 is used by a citizen or lawful permanent resident to petition for his or her child, son or daughter. [It is also used by either to petition for a spouse and by a citizen to petition for a parent or sibling (see Chapter 21.3, Chapter 21.8 and Chapter 21.9).] It may be filed through a Service Center, or at a local office if filed concurrently with an adjustment application.

(c) General Adjudicative Issues.

Regardless of the circumstances under which an immigrant visa petition is filed on behalf of a child, son or daughter, there are four basic adjudicative issues which must be taken into consideration: the petitioner’s status, the beneficiary’s age, the beneficiary’s marital status, and the relationship between the petitioner and the beneficiary.

Note

With each of these factors, the criteria must be met not just at the time of filing, but also at the time of the adjudication of the petition, in order for the petition to be approved. Furthermore, in most circumstances, the criteria must continue to be met after the petition’s approval and until the beneficiary becomes an LPR; otherwise, the petition’s approval may be revoked. (See Chapter 20.3 of this field manual.)

·     Petitioner's Status - The petitioner may be a citizen of the U.S. ora lawful permanent resident of the U.S. The relationships for which the petition may be filed depend on the petitioner’s status (see below). The evidence which must be submitted to establish the petitioner’s status as a citizen or LPR is specified in 8 CFR 204.1(g). Any doubts about the status of an LPR or naturalized citizen should be resolved through a review of the petitioner’s A-file.

·     Age of Beneficiary - The age of the beneficiary affects the classification under which a petition may be approved. If under age 21 and unmarried, the (otherwise eligible) beneficiary is considered to be a child; if 21 or older or if married, the (otherwise eligible) beneficiary is considered a son or daughter (see below).

·     Marital Status of Beneficiary - One of the most frequent problems arising in this category is that a beneficiary who is reputed to be unmarried may actually be married. In the case of a petition filed by citizen, this can affect the classification under which the petition is approved; in the case of a petition filed by a LPR, it makes the difference between an approval and a denial:

PETITIONER	MARITAL STATUS & AGE OF THE BENEFICIARY	RESULT
Citizen	Unmarried and under age 21	Immediate Relative
Citizen	Unmarried and 21 or older	1 st Family Preference
Citizen	Married (any age)	3 rd Family Preference
LPR	Unmarried and under age 21	2a Family Preference*
LPR	Unmarried and 21 or older	2b Family Preference*
LPR	Married (any age)	Not eligible

* Note

While 2a and 2b are both 2 nd preference classifications, quota numbers for the 2a sub-group (which is limited to spouses and unmarried children of LPRs) are much more readily available.

Since a lawful permanent resident can petition on behalf of an unmarried son or daughter regardless of age, you must be satisfied that the beneficiary has either never been married or has terminated any and all prior marriages before you approve the petition. Any doubts about the beneficiary's marital status should be resolved through an interview at a local office.

·     Relationship Between Petitioner and Beneficiary - This is the most complex issue to the considered in the adjudication of a petition for a child, son or daughter. In examining this issue, it is important to keep in mind not only the nature of the relationship (e.g., legitimate child, illegitimate child, adopted child), but also the point at which the relationship existed (e.g., the child’s age at the time of the marriage between his or her parent and stepparent or at the time of the petitioner’s acquisition of status). Each possibility is discussed separately under section (d) of this subchapter.

(d) Adjudicative Issues Pertaining to Relationship Between Petitioner and Beneficiary.

The following list of issues provide guidance on specific familial relationships. Adjudicators should also be aware of the issues discussed in the relevant precedent decisions pertaining to petitions for a child, son or daughter (see Chapter 23.4(g)).

(1) Child Born in Wedlock (Formerly Referred to as “Legitimate Child”).

See 8 CFR 204.2(d)(2)(i) for information regarding primary evidence for a child, son or daughter born in wedlock. (Note: “The phrase “child, son or daughter born in wedlock” includes an individual born to a couple in a “common law” marriage, if the common law marriage is recognized by the State or foreign country in which the couple resides (see Appendix 21-1 of this field manual.)

(2) Step Child.

See 8 CFR 204.2(d)(2)(iv) for information regarding primary evidence for a stepchild.

(A) Creation of the Stepparent-Stepchild Relationship.

A stepchild relationship is created whenever a parent of the child marries someone (other than the child’s other parent) before the child’s 18 th birthday. The relationship is created automatically as a result of the marriage, assuming that the marriage is not a sham or does not violate the Defense of Marriage Act - see Matter of Teng , 15 I. & N. Dec 516 (BIA 1975) and Chapter 21.3 of this field manual.)

(B) Termination of Stepparent-Stepchild Relationship.

Normally, a step relationship terminates when a marriage ends, especially if it ends in divorce. See Matter of Simicevic , 10 I. & N. Dec. 363 (BIA 1963). 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 stepparent and natural parent if there is an ongoing relationship between the stepparent and stepchild (see Matter of Pagnerre , 13 I. & N. Dec. 173 (BIA 1971), Matter of Mowrer , 17 I. & N. Dec. 613 (BIA 1981), and Matter of Mourillon , 18 I. & N. Dec. 122 (BIA 1981)). If the marriage ends in annulment, however, the step relationship is deemed to have never existed because legally the marriage never existed.

Note

The creation of a step relationship in no way terminates the relationship between the child and his or her other natural parent (i.e., the one who did not marry the stepparent). It is neither unusual nor improper for a child who acquired LPR status through a stepparent to later petition for the other natural parent once the child naturalizes and reaches the age of 21.

(C) Petition by Wife of Natural Father.

In some cases, although a natural father may be ineligible to petition for his illegitimate child, a stepparent-stepchild relationship may exist under the Act between the child and the wife of the natural father even if she has never seen or cared for the child. See Matter of McMillan , 17 I. & N. Dec. 605 (BIA 1981).

(3) Legitimated Child.

See 8 CFR 204.2(d)(2)(ii) for information regarding primary evidence for a legitimated child or son or daughter.

Some nationalities are not concerned with the formal legalization of a relationship; therefore, a child may be raised in a household in a parent-child relationship when legally there is no relationship. A petition based on that relationship could not normally be approved.

In considering petitions for parents or children, you must take into account the laws governing the places of residence of the parents and of the child in addition to the restrictions of the Act. Some countries require formal court action to legitimate a child, while others do not. You may find a case where the father of an illegitimate child acknowledges paternity of a child, but that acknowledgment may or may not have constituted legitimation. If the petitioner fails to establish that the beneficiary has been legitimated, you should then consider whether the beneficiary may qualify as a child born out of wedlock with whom the petitioner has a bona-fide parent-child relationship (see paragraph (4)).

(4) Child Born out of Wedlock (Formerly Referred to as “Illegitimate Child”).

See 8 CFR 204.2(d)(2)(iii) for information regarding primary evidence for a child, son or daughter born out of wedlock.

(A) Petition by Mother for a Child Born Out of Wedlock.

The mother of an illegitimate child always qualifies as a petitioner.

(B) Petition by Natural Father for a Child Born Out of Wedlock.

Section 101(b)(1)(D) of the Act was amended to enable the natural father of a child born out of wedlock to petition for that child, if the father has or had a bona fide parent- child relationship with the child. A bona fide parent-child relationship is established when the father has or had evinced an active concern for the child's support, instruction and general welfare. The parent-child relationship must be established while the child is unmarried and under twenty-one (21) years of age. Benefits sought v ia this amendment may only be obtained on the basis of relative petitions filed on or after November 6, 1986, the effective date of the amendment. See Matter of Atembe , 19 I. & N. Dec. 427 (BIA 1986).

Note

See also paragraph (2)(C) of this chapter regarding a petition filed by a step-mother.

(5) Child Adopted While Under the Age of 16.

See 8 CFR 204.2(d)(2)(vii) for information regarding primary evidence for an adopted child or son or daughter.

(A) General Provisions.

Section 101(b)(1)(E) defines an adopted alien child as “(i) a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or (ii) subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years[.]”

Note (added 10-31-2008)

In section 101(b)(1)(E) of the Act, “adopted while under the age of 16” means that the court or other entity must actually have entered the adoption order before the child’s 16th birthday. An adoption order that was entered on or after the child’s 16th birthday does not meet this requirement, even if the court or other entity makes the order effective as of some date before the 16th birthday. See Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976).

This conclusion does not mean that USCIS is not recognizing the validity of the adoption, for purposes of domestic relations law or any other purpose. This conclusion only means that the parent-child relationship was not created by the age required in the statute for immigration purposes.

An order that was entered on or after the child’s 16th birthday can support the approval of a Form I-130 only if that order was entered to correct an error in an order that actually was entered before the child’s 16th birthday. For example, if a court intended to enter an adoption order but, mistakenly, entered a guardianship order, an order correcting the earlier order would support approval of a Form I-130, if all the other requirements of section 101(b)(1)(E) are met. See Allen v. Brown, 953 F.Supp. 199 (N.D.Ohio 1997). In these circumstances, the petitioner should present both the original order and the later order correcting the original order.

(B) Relationship Through Adoption. The regulations incorporate the definitions for both legal custody and joint residence in paragraphs (vii)(A), (vii)(B), and (vii)(C) of 8 CFR 204.2(d)(2) . You need to be aware of these regulations and their applicability. See also chapter 21.15 of this AFM for specific information about immigration benefits based on adoption.

It is important that you determine if the petitioner and beneficiary are related through adoption or if their natural relationship was severed through an adoption. Aliens who gain permanent resident status in the U.S. through adoptive parents are not eligible to pass on immigration benefits to their natural parents. Also, the beneficiary's date of birth, the date of the adoption and time spent residing with and in the legal custody of the adoptive parents are critical in establishing the validity of the rel ationship. See 8 CFR 204.2(d)(2)(vii) for the evidence necessary to establish petitioner's right for the benefits sought. See also Matter of Cuello , 20 I. & N. Dec. 94 (BIA 1989) and Matter of Marquez , 20 I. & N. Dec. 160 (BIA 1990).

Note

While the petition asks the petitioner if the relationship between the petitioner and beneficiary is an adoptive relationship, in some cases you must evaluate the evidence and information presented in order to make the determination. Often, the only clue you will have to indicate a person was adopted is a birth certificate which indicates that birth occurred a number of years before it was registered but with no indication that the document is a delayed birth certificate. Most states in the U.S. do not annotate birth certificates issued for adoptive children to indicate the adoption.

(C) Primary Parental Control.

The petitioner, as adoptive parent, has the burden of proof in establishing that primary parental control has been exercised by him/her during the requisite residence period. 8 CFR 204.2(d)(2)(vii)(B) lists some types of evidence of that may be submitted to establish such parental control. Once the petitioner submits such evidence, the relationship is presumed bona fide, absent any evidence indicating otherwise. See Matter of Cuello , 20 I. & N. Dec. 94 (BIA 1989).

(D) Petition by Adopted Child for Natural Parent(s) Prohibited.

If a woman or couple give up a child for adoption, and that adoption meets the requirements set forth in section 101(b) of the Act, the natural parent(s) can gain no immigration benefit from that child (see Matter of Li , 20 I. & N. Dec. 700). Accordingly, such child is prohibited from petitioning for his or her natural parent(s), since the relationship between the child and the natural parent(s) was severed at the time of the adoption. This prohibition is in effect regardless of whether the child gains any immigration benefit through his or her adoptive parents ( Matter of Li overruled prior precedent decisions in this regard).

However, if the adoption in question does not meet all of the requirements of section 101(b) of the Act (e.g., if the child was over age 16 at the time of the adoption), then the relationship between the child and his or her natural parent(s) was not severed, and the child is not prohibited from petitioning for such natural parent(s).

(E) Special Provision for Sibling of Child Adopted by Same Parents.

Pub. L. 106-139 amended the Act to provide that an adopted alien child who is under the age of eighteen may be considered a “child” as defined in the Act, if the child is adopted with or after a natural sibling who is also considered a “child” under the Act. This change in law only applies when the sibling has been or will be adopted by the same adoptive or prospective adoptive parents. The legislation addresses the two definitions of an adopted alien child under section 101(b)(1)(E) and section 101(b)(1)(F) of the Act. Section 101(b)(1)(E) defines a “child” as including “a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.” Pub. L. 106-139 amends section 101(b)(1)(E) of the Act to addthat a child who is a natural sibling of an adopted child described above, and who was adopted by the adoptive parent or parents of the sibling while the child was under the age of eighteen, is also a “child” as defined by the Act. The child must otherwise fall under the definition of a child under paragraph (E) except that the child was adopted while under the age of eighteen. The exceptions apply equally if either the adopted alien child or natural sibling has been adopted after being in the guardianship of the U.S. citizen parent(s) for more than two years as defined in paragraph (E) or falls under the definition of an orphaned child under paragraph (F). (See Chapter 21.5 of this field manual for a discussion of section 101(b)(1)(F) cases.)

Note  

(F) Child from a Hague Adoption Convention Country. (added 10-31-2008)

USCIS may not approve a Form I-130 that is filed by a citizen who is habitually resident in the United States on behalf of a child, son or daughter who is habitually resident in a country, other than the United States, that is a Party to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (“Hague Adoption Convention”), unless the citizen completed the adoption of the child before April 1, 2008.

Adjudicators may find a list of countries that are parties to the Hague Adoption Convention at:
www.travel.state.gov/family/adoption/convention/convention_4197.html

If the citizen adopted the child from a Hague Adoption Convention country on or after April 1, 2008, a Form I-130 may be approved only if the citizen establishes that, at the time of the adoption:

·     EITHER the citizen was not habitually resident in the United States; OR

·     The child was not habitually resident in the other Hague Adoption Convention country.

The Hague Adoption Convention regulation, at 8 CFR 204.303 , explains when the adoptive parent and adopted child are deemed to be “habitually resident” in a particular country.

A U.S. citizen is deemed to be “habitually resident” in the United States if he or she is domiciled in the United States, that is, if he or she actually lives in the United States with the intent to maintain that residence for the indefinite future.

A U.S. citizen is also deemed to be “habitually resident” in the United States if he or she is domiciled abroad, but the U.S. citizen plans to take either of the following actions before satisfying the 2-year residence and custody requirements that would permit the child to immigrate under section 101(b)(1)(E):

·     establishing a domicile in the United States on or before the date of the child’s admission for permanent residence (and, therefore, will be living with the child in the ’’’’United States’’ after the adoption); or

·     bringing the child to the United States temporarily to obtain the child’s naturalization under section 322 of the Act.

Thus, a U.S. citizen will be deemed to be “habitually resident” in the United States if the citizen seeks to bring the child to the United States as a direct consequence of the adoption.

A child is generally deemed to be habitually resident in a Hague Adoption Convention country if he or she is a citizen of that country. If the child is actually residing in a country other than the country of citizenship, however, the child may be deemed to be habitually resident in that other country if the Central Authority of that other Convention country, or another competent authority in either a Convention or non-Convention country determines that the child’s status in that country is sufficiently st able to make it appropriate for that country to exercise jurisdiction over the adoption of the child. See the Note later in this AFM chapter concerning when and how this determination may be made with respect to a child who is actually residing in the United States.

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\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 21 Family-based Petitions and Applications. \ 21.4 Petition by Citizen or Lawful Permanent Resident for a Child, Son or Daughter.
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