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What is a Refugee?

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Prior to 1980, departure from communist-dominated or communist-occupied states, or departure from countries in the Middle East, was generally sufficient justification for refugee eligibility. Until this time, U.S. refugee policy was dominated by Cold War geopolitical concerns and strategies. The Refugee Act of 1980 sought to eliminate the prevailing geographic and ideological preferences and to emphasize that persecution, not provenance, was to be the basis for determining refugee eligibility.

The Refugee Act formally incorporated into U.S. law the international definition of refugee contained in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. A refugee is defined as a person outside of his or her country of nationality who is unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. By Presidential Determination certain refugees may be processed while still in their countries of origin (Cuba, Vietnam, and the former Soviet Union). While in-country processing was designed to be an exceptional remedy to refugees of compelling need, a large percentage of all refugees admitted to the United States have been processed in-country.

Under U.S. law, a person who has committed acts of persecution, or has assisted in the commission of persecution in any way, on account of race, religion, nationality, membership in a particular social group, or political opinion, is not eligible for classification as a refugee.

Refugees and immigration

Refugee and asylee follow to join cases

US refugee program

Information regarding asylum refugee and relative petitions to the US to be offered by the government

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Refugee Adjustment

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

If you have been a refugee or held asylum status for at least one year, you may be eligible to change your status to that of a permanent resident.

There is a large package that must be prepared and sent to BCIS . A copy of the letter granting you derivative asylee status either on the basis of having been included on the principal’s original asylum application or on the basis of having been the beneficiary of a petition filed by the principal.

Evidence of one year’s physical presence in the United States. Please keep physical presence evidence to an absolute minimum. Evidence might include a letter of employment, a lease, school enrollment records, or similar documentation, which would cover broad periods of time.

If you wish to travel outside of the U.S. (and return) while your application is being processed, you may use Form I-131, Application for Travel Document, to apply for a refugee travel document. More information may be found at Emergency Travel, and How Do I Get a Travel Document.

Each of the above named applications must be complete in its own right. All required documentation must be submitted with each concurrent application.

If you apply for work authorization and do not receive the document within 90 days of filing the application, you may obtain an interim work authorization document. After 90 days have passed, simply present the receipt that shows you have filed Form I-765 at your local office.

Bureau of population refugees and migration

Central american refugees

Cuban refugee adjustment act

Information regarding asylum refugee and relative petitions to the US be offered by the government 

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Asylum: Other Issues

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
Can I Travel Outside the United States?

If you are applying for asylum and you want to travel outside the United States, you must receive advance permission before you leave the United States in order to return to the United States. This advance permission is called Advance Parole. If you do not apply for Advance Parole before you leave the country, you will abandon your application with the BCIS and you may not be permitted to return to the United States. If your application for asylum is approved, you may apply for a Refugee Travel Document. This document will allow you to travel abroad and return to the United States. For more information, see How Do I Get a Travel Document?.

Will I Get a Work Permit?

Asylum applicants can not apply for employment authorization at the same time they apply for asylum. Rather, you must wait 150 days after the BCIS receives a complete application before you can apply for employment authorization. The BCIS has 30 days to either grant or deny your request for employment. Please see How Do I Get a Work Permit? for more information.

How Can I Find Out About the Status of My Application?

Please contact the BCIS Asylum Office that received your application. You should be prepared to provide the BCIS staff with specific information about your application. Please click here for complete instructions on checking the status of your application. Click here for information on BCIS offices.

How Can I Appeal?

Applicants will be interviewed by an Asylum Officer or an Immigration Judge. The Asylum Officer will either approve your application or refer it to an Immigration Judge for a final decision. If the Immigration Judge denies your asylum application, you will receive a letter telling you how to appeal the decision. Generally, you may appeal within 33 days of receiving the denial. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C.

Adjudication of asylum

Appeal asylum

Asylum agreements

Don´t even think filing fraudulent asylum application!

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How to Apply for Asylum?

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

To be eligible for asylum in the United States, you must ask for asylum at a port-of-entry (airport, seaport or border crossing), or file an application within one year of your arrival in the United States. You may ask later than one year if conditions in your country have changed or if your personal circumstances have changed within the past year prior to your asking for asylum, and those changes of circumstances affected your eligibility for asylum. You may also be excused from the one year deadline if extraordinary circumstance prevented you from filing within the one year period after your arrival, so long as you apply within a reasonable time given those circumstances. You may apply for asylum regardless of your immigration status, meaning that you may apply even if you are illegally in the United States.

In addition, you must qualify for asylum under the definition of “refugee.” Your eligibility will be based on information you provide on your application and during an interview with an Asylum Officer or Immigration Judge. If you have been placed in removal (deportation) proceedings in Immigration Court, an Immigration Judge will hear and decide your case. If you have not been placed in removal proceedings and apply with the BCIS , an Asylum Officer will interview you and decide whether you are eligible for asylum. Asylum Officers will grant asylum, deny asylum or refer the case to an Immigration Judge for a final decision. If an Asylum Officer finds that you are not eligible for asylum and you are in the United States illegally, the Asylum Officer will place you in removal proceedings and refer your application to an Immigration Judge for a final decision. Immigration Judges also decide on removal if an applicant is found ineligible for asylum and is illegally in the United States. If you are in valid immigrant or nonimmigrant status and the Asylum Officer finds that you are not eligible for asylum, the Asylum Officer will send you a notice explaining that the BCIS intends to deny your request for asylum. You will be given an opportunity to respond to that notice before a decision is made on your application.

Adjudication of asylum

Appeal asylum

Asylum seekers

Immigrant children and asylum

 

 

 

 

 

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Immigration Attorneys can now proceed with cases on hold

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Immigration Attorneys can now proceed with cases that have been on hold for many years. Attorneys who practice Immigration Law have been somewhat at a standstill for years regarding domestic violence cases as there was no law that gave such people the protection needed. However, the Matter of R_A_ has just been decided in favor of the person who was abused via domestic violence. Senator Leahy has issued a statement regarding this case which is right on point. It shows how domestic violence cases will now get the protection of U.S. asylum laws. His memo follows:

CONTACT: Office of Senator Leahy, 202-224-4242 VERMONT
Leahy Praises Resolution In Alvarado Asylum Case,
Pushes Administration To Issue Regulations

WASHINGTON (Tuesday, Dec. 15, 2009) – Senator Patrick Leahy (D-Vt.) Tuesday praised the conclusion of a 14-year legal struggle that has resulted in the United States granting asylum to a domestic abuse survivor from Guatemala.  Last week, an immigration judge granted asylum to Ms. Rody Alvarado, who fled to the United States in the 1990s seeking protection under the nation’s asylum laws.

“The details of Ms. Alvarado’s case are shocking,” said Leahy.  “She suffered from horrific domestic violence in her home country of Guatemala, and sought protection in the United States under our asylum laws.  Because persecution of this type had not previously been recognized as  a basis for refugee or asylum protection, Ms. Alvarado was forced to fight a long legal battle to win her case.”

Ms. Alvarado fled her native Guatemala in 1995 to seek asylum in the United States as a result of sexual and domestic violence committed by her husband.  Guatemalan police failed to intervene in the domestic violence despite the fact that Ms. Alvarado reported the crimes on five separate occasions.  As a result, Ms. Alvarado came to the United States seeking protection under asylum laws.

Leahy continued, “The administrations of three different presidents – Clinton, Bush and Obama
– have grappled with how to handle gender-based asylum claims, but the resolution of this case brings us closer to the end of this journey.  Ms. Alvarado can finally feel safe here in the United States, because she is no longer at risk of being deported to Guatemala.  The Obama administration must now issue regulations to ensure that other victims of domestic violence whose abuse rises to the level of persecution can obtain the same protection as refugees or asylees.”

Through three administrations, Leahy pressed five Attorneys General and three Homeland Security Secretaries to intervene in Ms. Alvarado’s case.  In a statement Friday, Leahy urged the Obama administration to issue binding regulations to address further gender-based asylum claims.

“The Obama administration has laid out a welcomed, new policy in its legal briefs in this case, and I thank the President, Secretary Napolitano, and Attorney General Holder for bringing this case to such a positive resolution.  Yet, the administration’s work is not done.  It must issue binding regulations so that asylum seekers whose cases have been held in limbo for years can also be resolved and that future cases are not delayed in adjudication.”

The full text of Leahy’s statement follows.

Leahy Praises Resolution In Alvarado Asylum Case, Pushes Administrati… http://leahy.senate.gov/press/200912/121509b.html
1 of 3 12/16/2009 9:51 AM
AILA InfoNet Doc. No. 09121662.  (Posted 12/16/09)

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Case of Ms. Rody Alvarado
December 15, 2009

I am pleased to learn that, after 14 years of legal struggle, Ms. Rody Alvarado has finally received asylum in the United States.  The details of Ms. Alvarado’s case are shocking.  She suffered from horrific domestic violence in her home country of Guatemala, and sought protection in the United States under our asylum laws.  Because persecution of this type had not previously been recognized as a basis for refugee or asylum protection, Ms. Alvarado was forced to fight a long legal battle to win her case.

The administrations of three different presidents – Clinton, Bush and Obama – have grappled with how to handle gender-based asylum claims, but the resolution of this case brings us closer to the end of this journey.  Ms. Alvarado can finally feel safe here in the United States, because she is no longer at risk of being deported to Guatemala.  The Obama administration must now issue regulations to ensure that other victims of domestic violence whose abuse rises to the level of persecution can obtain the same protection as refugees or asylees.

Ms. Alvarado fled Guatemala in 1995 after being beaten daily and raped repeatedly by her husband.  When she became pregnant, but refused to terminate her pregnancy, her husband kicked her repeatedly in the lower spine.   Ms. Alvarado had previously tried to escape the abuse, seeking protection in another part of Guatemala, but her husband tracked her down and threatened to kill her if she left their home again.  We know that Ms. Alvarado notified Guatemalan police at least five separate times, but the police refused to respond, telling her that her desperate situation was a domestic dispute that needed to be settled at home.

Over the past 14 years, Ms. Alvarado’s case has been considered by immigration judges, the Board of Immigration Appeals, and three different Attorneys General.  Throughout this extensive consideration, the core facts of her case have never been disputed.  All parties have agreed that Ms. Alvarado suffered extreme abuse at the hands of her husband, and that the Guatemalan government would not protect her.  All parties agreed that she has a well-founded fear that she would be abused again if she was forced to return to Guatemala.

The dispute in Ms. Alvarado’s case centered on whether the abuse she suffered was persecution under the terms of the Refugee Convention and applicable U.S. law.  To obtain protection in the United States, an asylum seeker must demonstrate that they have a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

I first wrote to Attorney General Janet Reno in December 1999, when the Board of Immigration Appeals (BIA) reversed Ms. Alvarado’s grant of asylum, concluding that her abuse was not persecution on account of membership in a particular social group.  This decision was particularly troubling because it left unclear what grounds, if any, could be applied to a victim of severe domestic abuse who cannot obtain the protection of her country of origin.  I wrote to Attorney General Reno again in February and September 2000 asking her to exercise her authority to review the case, called Matter of R-A-, and to reverse the BIA’s decision.

Unfortunately, the case was not reversed at that time, and it then languished for years.  I wrote to Attorney General Ashcroft in June 2004 asking him to work with the Department of  Leahy Praises Resolution In Alvarado Asylum Case, Pushes Administrati… http://leahy.senate.gov/press/200912/121509b.html
2 of 3 12/16/2009 9:51 AM
AILA InfoNet Doc. No. 09121662.  (Posted 12/16/09)
Homeland Security (DHS) to issue regulations to govern cases such as Ms. Alvarado’s and to then decide her case in accordance with such rules.  When he was a nominee to be Attorney General in January 2005, I asked Mr. Alberto Gonzales to commit to taking up the case and resolving it if he was confirmed.  Mr. Gonzales promised to work with DHS to finalize regulations, but did not take any action during his years as Attorney General.

Ten years after I and other members of Congress first sought appropriate action and the fair resolution of this case, we celebrate the long-overdue outcome.  While I dismayed at the length of time Ms. Alvarado has lived with fear and uncertainty, the final resolution of this case gives me hope that abuse victims like Ms. Alvarado who meet the other conditions of asylum will be able to find safety in the United States.

The Obama administration has laid out a welcomed, new policy in its legal briefs in this case, and I thank the President, Secretary Napolitano, and Attorney General Holder for bringing this case to such a positive resolution.  Yet, the administration’s work is not done.  It must issue binding regulations so that asylum seekers whose cases have been held in limbo for years can also be resolved and that future cases are not delayed in adjudication.  I urge the administration to immediately initiate a process of notice and comment rulemaking so that asylum seekers, practitioners, and other experts can contribute to the formulation of new rules.

Today, I commend Ms. Alvarado on the courage she has demonstrated over for many years while seeking protection in the United States.  I congratulate her and wish her all the best as she finally experiences true freedom from persecution and the full scope of liberties enjoyed by Americans.

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Find a good Immigration Attorney

Get a California Immigration Attorney 

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H-1B Visa Important Information to know

Posted on February 11, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

H-1B Visa Important Information to know before Filing the H-1B

Question: I know that the doors for the H-1B Visas will open up on April 1, 2010. I’ve heard so much about the H-1B Visa Petition, but I just don’t know exactly what is the H-1B Visa. Can you let me know?

Answer: The H-1B category is limited to alien workers filling positions in “specialty occupations” for which the alien workers have the necessary education and credentials. A “specialty occupation” is defined as the theoretical and practical application of a body of highly specialized knowledge; and a minimum of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. It is possible to get an H-1B Visa without an actual bachelor’s degree, but there must be an equivalent of a bachelor’s degree for the H-1B Visa through either work, experience and/or a combination of education and work.

Question: What are the major requirements for the H-1B Visa Petition?

Answer: Foreign Nationals seeking to perform services in an H-1B specialty occupation must show that they have the necessary qualifications to undertake the services required for that H-1B specialty occupation. At a minimum, the foreign national in a specialty occupation must document that he or she has full state licensure to practice in the occupation, if such licensure is required to practice. This licensure must be shown at the beginning of the petition or the submission of the H-1B Petition, not at a later point. The foreign national must also establish that he or she has completed the degree required as the minimum standard for entry into the occupation in the United States, or has experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions in the occupation.

Question: Is there a limit on the number of H-1B visas available?

Answer: The 1990 Immigration and Nationality Act imposed an annual limit on the number of new admissions in the H-1B category. An H-1B number must be available at the time a new petition is adjudicated. Immigration will not approve an H-1B petition once the cap has been reached during a fiscal year if the petition has a date for commencement of employment that falls within that fiscal year. The Service counts petitions for initial H-1B employment in determining compliance with the annual cap. Petitions for sequential H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions are not counted against the cap.
The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. While the economy was in recession last year and the H-1B’s actually lasted much longer than in previous years, the H-1B Petition should be submitted as soon after April 1 as possible in case they are used up quickly.

Question: Should I hire an Immigration Attorney or an H-1B Immigration Attorney to help?

Answer: There are many different parts to a successful H-1B. It would be in your benefit to hire an Immigration Attorney who has done a lot of H-1B Visa Petitions and has a track record of success.

Deadline for H-1B

Amended H-1B petition

Cap H-1B

H-1B work visa for specialty occupation 

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Important Information to know before Filing the H-1B

Posted on February 11, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that the doors for the H-1B Visas will open up on April 1, 2010. I’ve heard so much about the H-1B Visa Petition, but I just don’t know exactly what is the H-1B Visa. Can you let me know?

Answer:  The H-1B category is limited to alien workers filling positions in “specialty occupations” for which the alien workers have the necessary education and credentials. A “specialty occupation” is defined as the  theoretical and practical application of a body of highly specialized knowledge; and a minimum of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. It is possible to get an H-1B Visa without an actual bachelor’s degree, but there must be an equivalent of a bachelor’s degree for the H-1B Visa through either work, experience and/or a combination of education and work.

Question: What are the major requirements for the H-1B Visa Petition?

Answer:  Foreign Nationals seeking to perform services in an H-1B specialty occupation must show that they have the necessary qualifications to undertake the services required for that H-1B specialty occupation. At a minimum, the foreign national in a specialty occupation must document that he or she has full state licensure to practice in the occupation, if such licensure is required to practice. This licensure must be shown at the beginning of the petition or the submission of the H-1B Petition, not at a later point.  The foreign national  must also establish that he or she has completed the degree required as the minimum standard for entry into the occupation in the United States, or has experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions in the occupation.

Question: Is there a limit on the number of H-1B visas available?

Answer: The 1990 Immigration and Nationality Act imposed an annual limit on the number of new admissions in the H-1B category. An H-1B number must be available at the time a new petition is adjudicated. Immigration will not approve an H-1B petition once the cap has been reached during a fiscal year if the petition has a date for commencement of employment that falls within that fiscal year. The Service counts petitions for initial H-1B employment in determining compliance with the annual cap. Petitions for sequential H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions are not counted against the cap.

The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. While the economy was in recession last year and the H-1B’s actually lasted much longer than in previous years, the H-1B Petition should be submitted as soon after April 1 as possible in case they are used up quickly.
Question: Should I hire an Immigration Attorney or an H-1B Immigration Attorney to help?
Answer: There are many different parts to a successful H-1B. It would be in your benefit to hire an Immigration Attorney who has done a lot of H-1B Visa Petitions and has a track record of success.

Filed under: H-1B | Tagged: , , , , , , , | 2 Comments »

H-1B Visa Important Information to know before Filing the H-1B

Posted on February 11, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that the doors for the H-1B Visas will open up on April 1, 2010. I’ve heard so much about the H-1B Visa Petition, but I just don’t know exactly what is the H-1B Visa. Can you let me know?

Answer:  The H-1B category is limited to alien workers filling positions in “specialty occupations” for which the alien workers have the necessary education and credentials. A “specialty occupation” is defined as the  theoretical and practical application of a body of highly specialized knowledge; and a minimum of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. It is possible to get an H-1B Visa without an actual bachelor’s degree, but there must be an equivalent of a bachelor’s degree for the H-1B Visa through either work, experience and/or a combination of education and work.

Question: What are the major requirements for the H-1B Visa Petition?

Answer:  Foreign Nationals seeking to perform services in an H-1B specialty occupation must show that they have the necessary qualifications to undertake the services required for that H-1B specialty occupation. At a minimum, the foreign national in a specialty occupation must document that he or she has full state licensure to practice in the occupation, if such licensure is required to practice. This licensure must be shown at the beginning of the petition or the submission of the H-1B Petition, not at a later point.  The foreign national  must also establish that he or she has completed the degree required as the minimum standard for entry into the occupation in the United States, or has experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions in the occupation.

Question: Is there a limit on the number of H-1B visas available?

Answer: The 1990 Immigration and Nationality Act imposed an annual limit on the number of new admissions in the H-1B category. An H-1B number must be available at the time a new petition is adjudicated. Immigration will not approve an H-1B petition once the cap has been reached during a fiscal year if the petition has a date for commencement of employment that falls within that fiscal year. The Service counts petitions for initial H-1B employment in determining compliance with the annual cap. Petitions for sequential H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions are not counted against the cap.

The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. While the economy was in recession last year and the H-1B’s actually lasted much longer than in previous years, the H-1B Petition should be submitted as soon after April 1 as possible in case they are used up quickly.
Question: Should I hire an Immigration Attorney or an H-1B Immigration Attorney to help?
Answer: There are many different parts to a successful H-1B. It would be in your benefit to hire an Immigration Attorney who has done a lot of H-1B Visa Petitions and has a track record of success.

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Marriage Petition

Posted on February 11, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
This type of visa will allow you to obtain the Green Card for you, your spouse and your unmarried children under 21 years old. You can get the Immigration Green Card by marriage if the marriage is bona-fide.

If you marry a United States Citizen, you can begin the process immediately to get your Green Card. Depending on your current status and whether you entered the country legally, you can stay in the United States and Adjust your Status to that of a Lawful Permanent Resident. Otherwise, you may have to have the application prepared and sent to the United States Consulate of your home country.

If you have been married less than two years, you will get a Conditional Green Card. This means that two years later, you will have to file another petition to remove the Conditional Residency to prove the marriage is real.

Marriage petition

Bonafide marriage

Marriage exemption

Hire a California deportation lawyer if you have been charged with marriage fraud

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Child Summary

Posted on February 11, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

This information is for United States (U.S.) citizens and lawful permanent residents who wish to bring their child(ren) to live permanently in the U.S. : Information concerning the new K (advance admission for the spouse and children of a U.S. citizen) and new V (advance admission for the spouse and the minor children of a lawful permanent resident) nonimmigrant categories is available on the temporary visa section of our site.

The immigration law defines a “child” as an unmarried person under the age of 21 (a minor) who is one of the following:

  • A child born to parents who are married to each other (born in wedlock)
  • A stepchild if the marriage creating the step relationship took place before the child reached the age of 18
  • A child born out of wedlock (the parents were not married at the time the child was born). Note: If the father is filing the petition, proof of a bona fide (real and established) relationship with the father must be supplied.
  • An adopted child if the child was adopted before the age of 16 and has lived with the adoptive parent(s) in their legal custody for at least two years
  • An orphan under the age of 16 when an adoptive or prospective adoptive parent files a visa petition on his or her behalf, who has been adopted abroad by a U.S. citizen or is coming to the U.S. for adoption by a U.S. citizen; or
  • A child adopted who is under the age of 18 and the natural sibling of an orphan or adopted child under the age of 16, if adopted with or after the sibling. The child must also otherwise fit the definition of orphan or adopted child.

The immigration law defines a “son or daughter” as a person who was once a “child” but who is now either married or over the age of 21.

A legal immigrant (or “lawful permanent resident”) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your child or son or daughter to become a legal immigrant.

You must obtain INS approval of an immigrant visa petition that you file for your child, son or daughter. The State Department must then give your son or daughter an immigrant visa number, even if he or she is already in the United States. If you are a U.S. citizen and the child is both under 21 years of age and unmarried, a visa number is not required. If your child or son or daughter is outside the United States, he or she will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa when one becomes available. If your child or son or daughter is legally in the U.S. when an immigrant visa number becomes available (or if one is not required), he or she may apply to adjust status to that of a lawful permanent resident using the Form I-485.

A U.S. citizen may petition for:

  • A child (unmarried and under 21 years of age)
  • An unmarried son or daughter (over 21 years of age)
  • A married son or daughter of any age
  • A U.S. citizen’s unmarried, minor child is considered an immediate relative, does not need a visa number, and is eligible to receive an immigrant visa immediately. Otherwise, sons and daughters of U.S. citizens will be eligible for a visa when their priority date is listed on the Department of State’s Visa Bulletin .

If your unmarried, minor child was admitted or paroled into the U.S., he or she may file the Form I-485, Application to Register for Permanent Residence or Adjust Status, at the time you file your Form I-130, Petition for Alien Relative.

A lawful permanent resident may petition for:

  • A child (unmarried and under 21 years of age)
  • An unmarried son or daughter (over 21 years of age)
  • A lawful permanent resident may not petition for a married son or daughter.

If you had children before you became a permanent resident and you did not immigrate as an immediate relative of a U.S. citizen, your unmarried, minor children may be eligible to receive following-to-join benefits. This means that you do not have to submit a separate INS Form I-130 (Petition for Alien Relative) for your children, and your children will not have to wait any extra time for a visa number to become available.

US children

Border children

Immigrant children

Can a person still apply for green card?

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