Individuals who acquire lawful permanent residence through marriage are often concerned about their foreign-born children residing abroad. One common misconception is that someone who has a conditional green card must first obtain a permanent green card before filing for one’s children. This is not necessarily true, and in some cases, waiting too long to file can considerably affect how long it takes for a child to immigrate here. While a conditional permanent resident is obligated to file the I-751 to remove the conditions on his/her green card, he/she is nevertheless a permanent resident and accorded all the rights and privileges of a green card holder, including but not limited to working, traveling, and filing for one’s unmarried children. Depending on how old the child is, he/she will fall under preference category F2A (for unmarried children under 21) or F2B (unmarried children 21 or older). Currently, F2A cases are taking approximately 2 years to process, while F2B cases are taking approximately seven to eight years, which is appreciably longer. If a child is nearing twenty, a permanent resident may want to strongly consider filing the I-130 immediately in the hopes of getting the child here before he/she reaches 21.
Another option is to consider whether the US spouse is willing to file for the child. Under the immigration law, a US citizen can petition for his/her stepchild provided the stepparent-stepchild relationship is legally established before the child turns 18 (in other words, the parents have to marry before the child turns 18.) If a US Citizen files for the child before the child turns 21, there are two benefits that do not apply if a green card holder files. Firstly, the child falls under the Immediate Relative category, which is not subject to numerical quotas. Secondly, the child’s age freezes under the Child Status Protection Act (“CSPA”) once the I-130 files. Therefore, even if the child turns 21 or older by the time the case comes up for processing, he/she will not be relegated to a different category, ie., F-1 unmarried children (21 years or older) of US Citizens, which takes much longer.
These are just some concerns that green card holders must confront when planning to file for their children abroad. There are other topics as well that affect a case, such as the legitimacy of the child (was he/she born in wedlock?) as well as whether the other biological parent consents to the child immigrating.
For more information on how to petition for your foreign-born child, please contact our office. We have been handling these types of cases for more than twenty years.