Immigration of Children and Age-Related Issues

June 9, 2017
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Although in most situations it is easy to determine the child or children of an individual, in immigration it is not so simple. In general, the term child includes biological, adopted, and step-children. In immigration, child also includes these types of children, however, in immigration the age of the child is an important factor. In fact, depending on a person’s age, such a person might not be considered the child of a parent for immigration purposes, particularly when the child is a beneficiary to an immigration petition. Additionally, other issues or situations may rise that depend on a child’s age.

I. Issues regarding age of 21 years

A. Definition of Child

The age and marital status of children are important factors in the immigration process. For immigration purposes, a “child” is defined as being unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter”. This is an important distinction to make as “child” and “son” or “daughter” do no mean the same thing and they are not interchangeable.

Generally, the first step in obtaining U.S. lawful permanent resident (LPR) status involves a relative or employer completing a visa petition showing the necessary family or employment relationship exists between the “petitioner” (the U.S. relative or employer) and the “beneficiary” (the person who wants LPR status). While these beneficiaries are usually adults, such beneficiaries may also have children who need LPR status or the beneficiaries are children themselves.

For employment based immigration, children can be included by naming them on the parent’s visa petition as a “derivative beneficiary.” With respect to derivative beneficiaries, a child can be a derivative beneficiary if two requirements are met. First, the child must meet the definition of a child under U.S. immigration law. In general, under INA §101(b)(1), a child is an unmarried person under the age of 21. Additionally, the person must be a biological, adopted, or step-child of the parent “lead beneficiary.” Second, the parent must be eligible for a type of immigrant visa that permits “derivative beneficiaries.” The law allows derivative beneficiaries to receive LPR status because of their relationship with the lead beneficiary (the parent) rather than their relationship with the petitioner (sponsoring employer or non-parent family member).

With respect to family based immigration, a U.S. citizen may directly sponsor immediate relatives. “Immediate relatives” of a U.S. citizen are defined as a spouse, unmarried children under the age of 21, and parents. If the family member of the U.S. citizen is not an immediate relative, then the U.S. citizen may still be able to sponsor them via what is called a “family preference category.” Eligible relatives include: unmarried sons or daughters over the age of 21; married children of any age; and brothers and sisters (if the U.S. citizen petitioner is over the age of 21). Lawful Permanent Residents may also sponsor their spouse and child (unmarried and under age 21). It is important to note that there are no “derivative beneficiaries”; a child is directly sponsored by the U.S. citizen parent and cannot be a derivative of a sponsored foreign parent.

B. Child Status Protection Act

A “child” is defined as an individual who is unmarried and under the age of 21. If a beneficiary turned 21 at any time prior to receiving permanent residence, the beneficiary would not be considered a child for immigration purposes. This this known as “aging out.” In the past, the child’s age was determined at the time of the grant of permanent residence; which could take months before a decision is made. As a result, Congress passed the Child Status Protection Act (CSPA) to protect a beneficiary’s immigration classification as a child when the beneficiary ages out due to excessive processing times. This protection can apply to family-based immigration and employment-based immigration. The CSPA adjusted how to determine a child’s age for purposes of immigration by defining earlier points of time to determine the child’s age; it does not matter if the child reaches age 21 afterwards.

1. Eligibility

To be eligible for Child Status Protection, the child must:
(1) Be the beneficiary of a pending or approved visa petition on or after August 6, 2002
(2) Not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002; AND
(3) “Seek to acquire” permanent residence within 1 year of a visa becoming available.
USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

2. Determining Age

For the CSPA and protection from “aging out,” the actual biological age of the child is not the determining factor. Instead, a formula is used to determine the child’s “age” that accounts certain factors. The age of the child is determined on the date on which an immigrant visa number becomes available for the parent’s immigration petition, subtracted by the number of days the petitions were pending with the USCIS. Thus, the formula for calculating the age of the alien child involves two dates:
(1) The age of the child on the date on which an immigration visa becomes available for the parent’s immigration petitions; AND
(2) The number of days the immigration petition was pending
Thus, the age of the alien child = (1) – (2). As a result, the child’s age is not the child’s biological age, but rather the age the child was at a particular point in time. Furthermore, in order to take advantage of the CSPA, the child beneficiary must also apply for adjustment of status or initiate a Consular Processing within one year of the visa number becoming available.

3. Opting Out

CSPA also provides another type of relief, known as “Opt-Out.” Although opting out of a protection may appear to run counter to seeking a visa, there are instances where doing so would be beneficial. For example, if a permanent resident petitioner filed a Form I-130 (Petition for Alien Relative) for an unmarried child and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a first preference classification. The reason this may be beneficial is because occasionally, the waiting time for the second preference visa is shorter than the waiting time for the first preference visa.

II. Issues regarding age of 18 years

A. Step-Parents and Step-Children

1. When the step-child is a “child” of the step-parent

With respect to step-children, under INA §101(b)(1)(B), “child” refers an unmarried person under 21 years of age who is a stepchild, provided the child had not reached the age of 18 years at the time the marriage creating the status of stepchild occurred. In other words, if the step-parent marries the biological parent before the step-child became 18 years old, the step-child would be considered as the “child” of the step-parent for immigration purposes. It is important to remember that the step-child still needs to be under 21 years of age when the immigration petition is filed if a child category is used for the step-child, such as a derivative beneficiary. Thus, a step-parent can sponsor a step-child’s petition provided the requirements are met.

2. When the duration of the marriage is less than 2 years

Besides the step-child’s age, the duration of the marriage is also an important factor. If a step-parent is petitioning for a step-child and the step-parent has not been married to the child’s biological parent for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident (CPR) status. Form I-751, Petition to Remove the Conditions on Residence is used to remove the conditional basis of permanent residence. Furthermore, Form I-751 must be filed within the 90-day period prior to the expiration date on the conditional resident card.

3. When the marriage ends

If the parent-child step-relationship is created by the marriage, what happens if the marriage ends? Normally, a step-relationship terminates when a marriage ends, especially if it ends in divorce. However, a step-relationship may continue after the death of the natural parent, or even after the legal separation or divorce of the step-parent and the natural parent, if there is an ongoing relationship between the step-parent and the step-child. Thus, the focus moves to the relationship between the step-parent and the step-child and not the marriage that created the relationship when determining whether the step-child is the “child” of the step-parent for immigration purposes.

B. Registration for Selective Service

Under the Military Selective Service Act, almost all male U.S. citizens and male immigrants, who are: (1) 18 years old or older, and (2) under 26 years old, are required to register with Selective Service. The purpose of the Selective Service System is to provide the numbers of men needed by the Armed Forces should such men be needed. It’s important to note that even though a man is registered, he will not automatically be inducted into the military. The U.S. does not have a drafted military; the decision to join the military is entirely voluntary. The Selective Service maintains a list of names in case there is a national emergency requiring rapid expansion of the armed forces.

1. Who is required to register?

As mentioned above, males 18 years or older, but under age 26, are required to register. This includes U.S. born and naturalized citizens, parolees, undocumented immigrants, legal permanent residents, asylum seekers, refugees, and all males with visas of any kind which expired more than 30 days ago. However, those holding non-immigrant visas do not have to register; these include visas such as H-1 and L-1 visas.

2. Consequences of failure to register

a. Bar to Naturalization (Citizenship)

In particular for immigration, one major consequence of failing to register is being barred from becoming a U.S. citizen. As part of the naturalization application process (the procedure by which foreign nationals become U.S. citizens), a person needs to establish good moral character. The United States Citizenship and Immigration Services (USCIS) will look carefully at an applicant’s actions and behavior during the “statutory period” before approving naturalization.

Section 316(a) of the Immigration and Nationality Act (INA) requires a naturalization applicant to prove that he or she is, and has been for the requisite period, a person of good moral character. Section 337(a)(5)(A) of the INA also requires applicants to declare under oath his or her willingness to bear arms on behalf of the United States when required by law. Therefore, refusal to, or knowing and willful failure to, register for Selective Service during the period for which an applicant is required to prove his compliance supports a finding that the applicant would not be eligible for naturalization. A man under 26 years of age who refuses to register for Selective Service cannot demonstrate that he is eligible for naturalization. If the applicant refuses to register for Selective Service, the naturalization application will be denied.

Failure to register for Selective Service is not a permanent bar to naturalization. In general, USCIS will find an applicant ineligible for naturalization because of his failure to register for Selective Service if done knowingly and willfully.

b. Ineligible for Benefits

With respect to immigrant children who have become citizens before the age of 18, there are other consequences for failing to register. A young man who fails to register with Selective Service may be ineligible for opportunities that may be important to his future. Registration is required to be eligible for federal student financial aid, state-funded student financial aid in many states, most federal employment, some state employment, security clearance for contractors, job training under the Workforce Innovation and Opportunity Act (formerly known as the Workforce Investment Act).

c. Penalties

Not only are there lost opportunities for failing to register, but also potential penalties. Failing to register or comply with the Military Selective Service Act is a felony punishable by a fine of up to $250,000 or a prison term of up to 5 years, or a combination of both. If a man fails to register before turning 26 years old, even if he is not tried or prosecuted, he may find that some opportunities are permanently closed.

If a man fails to register, or provides Selective Service with evidence that he is exempt from the registration requirement, after receiving Selective Service reminder and/or compliance mailings, his name is referred to the Department of Justice for possible investigation and prosecution for his failure to register as required by the Act. For clarification, if a man is exempt from registering with the Selective Service System, his name is not forwarded to the Department of Justice. The federal law stipulates that names are to be submitted to the Department of Justice annually.

III. Issues regarding age of 16 years

A. Adopted Children

1. When the adopted child is the “child” of the adopting parent

Unlike with step-children, in a situation where children were adopted, there are more requirements to meet for the adopted child to be considered the “child” of the adopting parent. With respect to adopted children, under INA §101(b)(1)(E)(i), an adopted child is the “child” of the adopting parent if:
(1) The child was adopted prior to age 16;
(2) The adopting parent had legal custody of the child for 2 years prior to filing; AND
(3) The adopting parent had physical custody (child resided with the parent) of the child for 2 years prior to filing.
Here, legal custody refers to the right the parent has over the child; meaning the adopting parent is the one who makes decisions on raising the adopted child (which school to attend, taking the child to the doctor, etc.). Physical custody, means who the child is living with. Because it is possible to have both legal and physical custody at the same time, both requirements can be met within the same 2 years. However, each custody still must be for a duration of 2 years; whether or not they overlap. Lastly, unlike step-children, the event creating the parent-child relationship (the adoption) must have occurred before the child reaches age 16.

Keep in mind that this is not a requirement or procedure for adopting children; it is instead the standard for determining who meets the definition of “child” for immigration purposes. Furthermore, the child must also be unmarried and under the age of 21 to be considered a “child.”

2. Adopting the sibling of the adopted child

In a situation where parents also adopt a sibling of a child, the sibling is also the “child” of the adopting parents if the same custody require are met, however the sibling can be under age 18 rather than 16. Under INA §101(b)(1)(E)(ii), subject to the same provisions for an adopted child, an additional adopted child is the “child” of the adopting parents if the child:
(1) Is a natural sibling of the child who was adopted under the age of 16;
(2) Was adopted by the same adoptive parent or parents of the sibling; AND
(3) Was adopted while under the age of 18 years.
Simply put, a child adopted at age 16 or older and under age 18 meets the definition of “child” for immigration purposes if a sibling (under age 16) was also adopted by the same parents. Furthermore, the custody requirements must be met for each child. Lastly, the same broader requirements of the child being under 21 years old and unmarried must also be satisfied.

IV. Issues regarding age of 14 years

A. Permanent Resident Card (Green Card)

A Permanent Resident Card (USCIS Form I-551 or Green Card), is proof of lawful permanent resident status in the United States. It also serves as a valid identification document and proof that a person is authorized to live and work permanently in the United States. Issues may arise regarding Permanent Resident Cards that center around the card holder’s age. Particularly, such issues may stem from the card holder being a child and under the age of 14 years.

1. Fingerprinting (Biometrics)

Children under 14 are not required to have their fingerprints taken and USCIS may waive any interview requirements. However, a child must still appear at the ASC if a biometrics appointment has been scheduled by the USCIS. If a child receives an appointment notice from USCIS, the child should attend. This notice cannot be ignored.

Generally, children under 14 years of age are exempt from biometrics fee. If the child is called in, it is likely that for a specific biometrics appointment. For children who are adjusting status, this information is necessary for the generation of the permanent resident card (also known as a green card).

2. Replacing a Green Card

Unlike old card which did not have expiration dates, the latest Form I-551 has an expiration date and must be renewed every ten years. Additionally, if such a card was issued to a person under the age of 14, earlier replacement may be necessary. The law requires that a permanent resident child apply for a new green card within 30 days of the child’s 14th birthday. A Green Card must be replaced if the card was issued before the card holder turned 14 years old, the card will not expire before the card holder’s 16th birthday, and the card holder reached his or her 14th birthday.

3. Consequences for failing to replace a Green Card

Generally, the consequence for failing to replace a Green Card is that the card simply expires and is deemed invalid. A person is legally required to carry a Green Card if the person is age 18 or older. Section 264(e) of the Immigration and Nationality Act states that all permanent residents must have “at all times” official evidence of permanent resident status. A photocopy is not acceptable. If found guilty of this misdemeanor, the penalty set by law is a fine of up to $100 or up to 30 days in jail, or both. Although this applies to adults (18 years and older), there are other consequences regardless of age.

A person with an expired Green Card may find difficulty with general aspects of daily life. With respect to issues for persons after the age of 14, an expired Green Card can prevent employment because employers are using E-verify to confirm applicants’ right to work in the U.S. Additionally, a person with an expired Green Card would not be able to obtain a driver’s license without a current, valid green card. Traveling out of the U.S. could be an issue because re-entry would require a valid identification. Lastly, if a person is looking to become a U.S. citizen through naturalization, that person will need a valid green card.

Thus, although a child under the age of 18 would not face misdemeanor penalties for an expired green card, there are other future consequences that affect the child’s ability to work, drive, travel, and become a citizen.

B. I-485 Application to Register Permanent Residence or Adjust Status

In filing an I-485 application, an applicant may be under the age of 14 and need not file with the I-485 application of at least one parent. In fact, according to the I-485 instructions, a parent or guardian may sign the application on the applicant’s behalf if the applicant is under 14 years old. Alternatively, if the applicant is 14 years or older, the applicant can sign the application on the applicant’s own behalf.

C. Minors as an EB-5 Immigrant Investors

Although it appears unusual, it is possible for a minor, someone under the age of 18, to be an EB-5 investor. This possibility also applies to minors who have not been emancipated (emancipated minors are no longer considered to be under the care and control of parents; instead, they take responsibility for their own care). It is important to note that the USCIS does not have an established policy regarding the approval of minors as EB-5 investors. Additionally, there no specific prohibition or age limitations for an EB-5 investor. Given the strange circumstance of a minor child investing $500,000 or more into the U.S., it is not surprising there is no specific policy on this issue. However, as noted earlier, an applicant who is under 14 years old would need a parent or guardian to sign the application on the applicant’s behalf; thus, a minimum cut-off may be 14 years old, when a person can sign on their own behalf according to USCIS.

1. Investing

For the time being, there is nothing prohibiting a minor from being an EB-5 investor and petitioner. However, the investor must prove that the investment contract is valid and not voidable. This creates a problem where contracts entered into by minors can be rescinded (withdrawn), depending on various state laws. Rescinding a contract could make the contract invalid and voidable. Basically, minors do not have “legal capacity” to enter into contracts until they become 18 years old. Thus, contractual issues in investing may become an issue.

Under the Uniform Transfers to Minors Act, or UTMA (also known as the Uniform Gifts to Minors Act), a parent or guardian, acting on behalf of a minor child, can enter into a contract on behalf of that child, and that contract is not voidable. For such an agreement to occur, the subscription agreement and operating agreement need to contain the following language on the signature page:

______________________ (NAME OF PARENT OR GUARDIAN) as custodian for ______________________ (NAME OF MINOR INVESTOR) under the [State] Uniform Transfers to Minors Act

Printed Name of Parent or Legal Guardian

Signature of Parent or Legal Guardian

There are several important factors to consider. First, the parent(s) must gift the investment funds to the child. This means that the transfer of the investment funds was voluntary and made without any consideration (that is, without an expectation of receiving compensation in return). The funds must be transferred into an account the child has control over, such as the child’s own account or a joint account of the parent and child. Second, at no point in time should the parent own any interest in the EB-5 investment company. Ownership is granted directly in the name of the child. Third, until the child reaches age 18 (or 21, depending on the state), the parents are responsible for managing the assets. When the child reaches the appropriate age, control is automatically granted to the child. This creates a non-voidable investment contract, which should satisfy the current EB-5 requirements regarding investments being “at risk” as interpreted by USCIS.

2. Engaged in Management

Another issue is whether a minor can legally “engage in the management” as a limited partner of the new commercial enterprise. Generally, there are no mandated age limits for members of limited partnerships. This is also true for minors who wish to start sole proprietorships. Additionally, state laws vary as to whether members of limited liability companies need to be over the age of 18, and typically all states require corporation owners to be over 18.

With respect to limited partnerships, under 8 CFR § 204.6(j)(5), if the petitioner, absent fraud, holds a position as a corporate officer or board member or, in the case of a limited partnership, is a limited partner under the provisions of the Uniform Limited Partnership Act (ULPA), the petitioner satisfies the requirement of engagement in management in the new commercial enterprise. Limited Partners are permitted to qualify for EB-5, however, in the business plan the limited partner must be granted all the authority granted to a limited partner under the Uniform Limited Partnership Act provisions of the state where the business is located. While this is supportive in defining engagement in management, it does not address whether this would apply to minors. Thus, whether a minor can be engaged in management may depend on local and state laws.

V. Legal Age for Marriage

People living in the United States may wish to bring their foreign spouses to the United States in order to live together. Generally, status of the persons getting married does not matter. Usually, a U.S. citizen is able to confer immigration benefits to his or her alien spouse where the spouse is already in the U.S. Similarly, a U.S. lawful permanent resident may confer immigration benefits to his or her alien spouse. However, while immigration status for the persons getting married may not matter, the validity of the marriage may be an issue.

While there is no exact definition of marriage in immigration law, a couple must establish validity of their marriage. In general, the legal validity of a marriage is determined by the law of the place where the marriage was celebrated (“place-of-celebration rule”). Under this rule, a marriage is valid for immigration purposes where the marriage is valid under the law of the state or jurisdiction in which the marriage was performed. Thus, because a marriage’s validity depends on the state or place it occurred in, with respect to the marrying couple’s ages, the minimum age to get married will depend on that jurisdiction as well.

In the United States, the general minimum age to get married is 18 years, with exceptions for Nebraska (19 years) and Mississippi (21 years). Furthermore, some states may have exceptions that lower the minimum age to 14 years; exceptions may include reasons such as consent by the parents or even by a judge. As for marriages outside the United States, it will depend on the laws of the place where the marriage occurred. Keep in mind that the primary issue of marriage in immigration is not the age of the married couple, but the validity of the marriage itself; which in turn may depend of the couple’s respective ages.