Chapter 8 - Children, Sons, and Daughters

A. Definition of a Child[1]

In general, a child for immigration purposes is an unmarried person under 21 years of age who is:

  • A child born in wedlock[2] to a U.S. citizen or lawful permanent resident (LPR) parent;

  • The legitimated[3] child of a U.S. citizen or LPR parent who is under 18 and in the legal custody of the legitimating parent or parents at the time of legitimation;

  • The stepchild of a U.S. citizen or LPR parent who is under 18 at the time of the marriage, creating the step-relationship;

  • A child adopted while under age 16 (or 18 if the sibling exception applies) who has jointly resided with and been in the legal custody of the adopting U.S. citizen or LPR parent for at least 2 years;[4]

  • An orphan who has been adopted abroad by a U.S. citizen or who is coming to the United States for adoption by a U.S. citizen;[5]

  • A Hague Convention adoptee who has been adopted abroad by a U.S. citizen or who is coming to the United States for adoption by a U.S. citizen;[6] or

  • A child born out of wedlock to a natural[7] U.S. citizen or LPR parent. If the petitioning parent is the natural father and the child has not been legitimated, the natural father and child must have had a bona-fide parent-child relationship before the child reached the age of 21 or married. 

1. Child Born In or Out of Wedlock

USCIS considers a child to be born in wedlock when the child’s legal parents are married to one another at the time of the child’s birth and at least one of the legal parents has a genetic or gestational relationship to the child.[8] Therefore, a child born in wedlock may be:

  • A genetic child of a married U.S. citizen or LPR parent if both married parents are recognized by the relevant jurisdiction as the child’s legal parents;

  • The child of a married non-genetic gestational U.S. citizen or LPR parent (person who carried and gave birth to the child) if both married parents are recognized by the relevant jurisdiction as the child’s legal parents; or

  • A child of a U.S. citizen or LPR who is married to the child’s genetic or gestational parent at the time of the child’s birth, if both married parents are recognized by the relevant jurisdiction as the child’s legal parents.[9]

If a child does not meet this definition of born “in wedlock,” USCIS considers the child to have been born out of wedlock. While the petitioning U.S. citizen or LPR parent may be the natural mother or natural father, if the petitioning parent is the natural father and the child has not been legitimated, the natural father and child must have had a bona-fide parent-child relationship before the child reached the age of 21 or married. A “natural” parent may be a genetic or a gestational parent (who carries and gives birth to the child) who is recognized by the relevant jurisdiction as the child’s legal parent.

2. Legitimated Child [Reserved]

3. Assisted Reproductive Technology (ART)[10]

The child of a gestational parent who is also the child’s legal parent may be considered a “child” for immigration purposes. A person who is the gestational and legal parent of a child under the law of the relevant jurisdiction at the time of the child’s birth may file a Petition for Alien Relative (Form I-130) for the child if all other eligibility requirements are met.

In addition, a non-genetic, non-gestational legal parent may file a Form I-130 on behalf of the child if the parent is married to the child’s genetic or gestational parent at the time of the child’s birth and both parents are recognized by the relevant jurisdiction as the child’s legal parents. Under those circumstances, the child is considered born in wedlock.[11]

Legal parentage is generally determined under the laws of the jurisdiction in which the child was born, but there may be circumstances in which the law of the jurisdiction of residence applies, such as when a post-partum act of legitimation occurs in the jurisdiction of residence.

4. Stepchild [Reserved]

B. Eligibility Requirements for Child Petitions [Reserved]

C. Documentation and Evidence [Reserved]

D. Adjudication [Reserved]

Footnotes


[^ 1] See INA 101(b). The Immigration and Nationality Act (INA) provides different definitions of “child” for immigrant visa petitions and for citizenship and naturalization. One significant difference is that a stepchild is not included in the definition relating to citizenship and naturalization. For more information, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].

[^ 2] See Subsection 1, Child Born in or Out of Wedlock [6 USCIS-PM B.8(A)(1)].

[^ 3] A child can be legitimated under the laws of the child’s residence or domicile or under the laws of the father’s residence or domicile. See INA 101(b)(1)(C). A person’s “residence” is the person’s place of general abode, that is, the principal, actual dwelling place without regard to intent. See INA 101(a)(33). A person’s “domicile” refers to a “person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” See Black’s Law Dictionary (11th ed. 2019). In most cases, a person’s residence is the same as a person’s domicile. Legitimated child includes a child of a U.S. citizen or LPR who is the child’s genetic or gestational parent at the time of the child’s birth, if the parent(s) are recognized by the relevant jurisdiction as the child’s legal parents.

[^ 4] See INA 101(b)(1)(E).

[^ 5] See INA 101(b)(1)(F).

[^ 6] See INA 101(b)(1)(G).

[^ 7] A “natural” parent may be a genetic or a gestational parent (who carries and gives birth to the child) who is recognized by the relevant jurisdiction as the child’s legal parent.

[^ 8] The term “genetic child” refers to a child who shares genetic material with the parent. The term “gestational parent” refers to the person who carriers and gives birth to the child.

[^ 9] The law of the relevant jurisdiction governs whether the non-genetic parent is the legal parent for purposes of U.S. immigration law. A non-genetic U.S. citizen parent, who is not a legally recognized parent of the child, may not be considered a parent for immigration purposes. USCIS follows any applicable court judgment of the relevant jurisdiction if parentage is disputed. In addition, USCIS does not adjudicate cases involving children whose legal parentage remains in dispute unless there has been a determination by a proper authority.

[^ 10] For additional background and eligibility criteria for Assisted Reproductive Technology see Volume 12, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section D, Assisted Reproductive Technology [12 USCIS-PM-H.2(D)].

[^ 11] See INA 101(b)(1)(A).

Current as of October 20, 2021