by Elizabeth R. Blandon

When a foreign national enters the U.S., it is for a period of authorized stay. Children have an advantage because although that time limit may expire, a child does not have unauthorized presence while under 18 years of age. In other words, children cannot technically be “illegal.” This article discusses several options for children to obtain legal status. If nothing else, they may be able to leave the U.S., obtain permission to return while abroad (if the visa has expired) and return in legal status. For example, a Venezuelan child whose heritage is Greek or Italian can leave the U.S. even if she has been here without permission for several years. Then, she returns on her European passport (Greece recently became a member of the European Union) under the Visa Waiver Program. The child does not even have to apply for a visa.

Step-child of U.S. Citizen. The petition by a U.S. citizen for a step-child (defined as the child of the foreign spouse if the couple married before the child was 18 years old) is independent from a petition for the child’s foreign parent. In other words, even if the foreign parent divorced, a U.S. citizen can still help a foreign child obtain legal permanent residency (LPR) so long as the relationship between the US citizen and the child continues. Of course, with LPR status, the child can live, work and study in the U.S.

Removal of Conditions, if residency was obtained more than 90 days after the residency of the foreign parent, does not depend solely on the strength of the parent’s marital relationship. This is important because when a foreigner obtains LPR status before the second anniversary of the marriage, Immigration requires the filing of another application and proof that the parent’s marital relationship is still valid. This is not possible where the foreign parent and the US citizen have divorced or are separated.

Victims of Abuse, whether physical or mental, who have suffered at the hands of a U.S. citizen or a legal permanent resident can obtain status in this country. If the child obtained legal permanent residence based on a parent’s marriage to the abuser, she can apply for citizenship after three years instead of five. This exception applies even if the “child” was 21 years old or older at the time she became a resident.

An abused child can also apply for legal permanent residency by herself. She does not need a U.S. citizen or legal permanent resident. Immediate legal status is also available to victims of domestic violence through a status known as the U visa.

An Adopted Foreign Child has the same rights as a natural child of a U.S. citizen or legal permanent resident. The child must be adopted before she is 16 years of age and there is also a requirement that the parent have two years of living with the child as well as two years of legal custody.

If the LPR or US citizen is Adopting a Brother or Sister, the child can be adopted until the age of 18. These cases are sometimes complicated because the natural parent lives with the adoptive parent. When that is the case, Immigration places the burden on the adoptive parent to demonstrate that it is a real parent/child relationship.

This article is not legal advice. No one should travel abroad without discussing his or her personal situation with an immigration professional. Please contact the Weston office of Elizabeth R. Blandon at (954) 985-0157 to schedule an appointment or telephonic conference.