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The Immigration and Nationality Act (INA) and the United States Code (U.S.C.) list the qualifications that establish the definition of a “child” under U.S. Immigration Law. This definition serves as a guideline for aliens who wish to come to the U.S. with their children.

Under these laws, there are six different types of children:

  • Child born In-Wedlock 
  • Child born Out-of-Wedlock
  • Stepchild
  • Legitimated Child
  • Adopted Child
  • Orphan

The Definition of a Child Under U.S. Immigration LAW

According to INA 101(b) (1) and 8 U.S.C. 1101(b)(1), a child is defined as: an “unmarried person under 21 years of age” who is one of the following.

Child born In-Wedlock: The child was born to two married individuals.

Child born Out-of-Wedlock: The child was born to two individuals who were not married at the time of birth.

Stepchild: As long as the child was under 18 when step-relationship was created, meaning that the natural parent and stepparent were married before the child turned 18 years of age.

Legitimated Child: Legitimation is defined as “the act of putting a child born out-of-wedlock in the same legal position as a child born in wedlock.”  The act of legitimation can only be taken by the natural father of the child in situations where the child’s natural mother and father are separated or she has abandoned, deserted, or relinquished the parental rights over the child.

There are four requirements that must be met in order for a child to be legitimized under immigration law:

  • Action to legitimate the child must fall under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile;
  • The child must be under 18 at the time of legitimation;
  • The father must have legal custody of the child at the time of legitimation, physical custody alone will not satisfy this requirement; and
  • The child must be the natural child of the father.  Paternity may be established by primary evidence (a birth certificate) or secondary evidence (medical or school records, or blood tests).

Once the above requirements are met, the father can then take the necessary steps to legitimate the child.  The following are the various methods that can be taken in the legitimation process:

  • Abiding by the laws of the country or state of the child’s or father’s domicile or residence that eliminate all legal distinctions;
  • Subsequent marriage of natural parents;
  • Judicial decree;
  • Formal recognition of paternity; and/or
  • Open/notorious acknowledgment of paternity.

Adopted Child: Children adopted before 16 and having 2 years legal custody and residence with adopting parent. However, if the family has already adopted a sibling, the second brother or sister who is adopted may be under 18 at time of adoption.

Orphan: Under Immigration law, certain orphans may be classified as “children” and receive immigration benefits. The INA establishes certain criteria that must be met, in order for the orphan to be considered a child:

  • Adoption must occur while the child is under the age of 16;
  • The child must have been orphaned by reason of death, disappearance, abandonment and/or desertion, separation, or loss of both parents.
    • Abandonment requires that the parents forsake all parental rights. Abandonment by both parents means that the parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer or without transferring these rights to any other specific person(s);
    • If the child only has one parent then the only requirement is that he/she must be incapable of providing proper care and irrevocably release the child in writing;
    • If the child is born out-of-wedlock then the child shall be treated as only having one parent;
    • Adoption must be by a husband and wife or by a single parent at least 25 years of age. 
  • If there are stepparents, the family shall be treated as if there are 2 parents for the sake of satisfying the requirements for orphans.
  • There are no limitations on the number of orphans a person can adopt.
  • USCIS must be satisfied that there will be proper care for the child. The home study requirement conducted by the USCIS includes an analysis of the parents’ capabilities and living conditions. Also, the study includes history of any substance abuse, sexual or child abuse, or domestic violence, even if there was no arrest or conviction.

If you are interested in immigrating to the United States with your children, please contact our office today to schedule a consultation with one of our attorneys!