The difference most of the time is how long it takes. Children under the age of 21 are considered "immediate relatives" under U.S. immigration law and are thus not subject to the visa quota system backlogs and waiting periods.



In most circumstances, a parent must file a visa petition for their child with U.S. CIS (www.uscis.gov) and only once that is approved and the consulate is notified of the approval will the child be able to enter the U.S. The child must go through a consulate screening interview and assuming there are no other grounds that could result in a denial of the case, the immediate relative child will enter the U.S. with a green card (permanent residency) and no other filings must take place.

However, there are times when a child is awarded a temporary green card only valid for 2 years as opposed to a permanent green card that is valid for 10 years and is easily renewable. A stepchild from a marriage that is less than 2 years old by the time the consulate processes the child's immigrant visa will only receive a green card that is conditional-valid for 2 years. This is because Congress presupposes that the marriage that created the stepparent relationship may be a sham or fake or will not last. The immigrant spouse and the immigrant child will both have conditional residency.

Similar to the spouse's predicament, the immigrant child will have to file to take the condition off of their residency when it is about to expire or else lose their green card.

Usually, children have cleaner cases, many having no immigration history in the U.S. However, many children are inside the U.S. already. Sometimes a parent has unsuccessfully tried to smuggle or sneak the child into the U.S. illegally, which creates potential problems for the child if an immigrant visa is approved and the child has a consulate interview.

Many children do not have parents that are U.S. citizens. lf the child has parents who are lawful permanent residents, the child may have to wait years before being able to enter the U.S. or obtain a green card. This backlog is created because Congress only alloted a certain number of visas to be released every year in certain family visa categories. There are always more visa applications than available visas. Thus, the waiting periods and the backlog is created. Every month, the U.S. Department of State (www.state.gov) publishes the availability of current visa numbers in the Visa Bulletin (http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html).

For example, only when the date an adult child (over the age of 21) of a U.S. citizen's case was filed becomes the same date that the visa number chart in the Visa Bulletin reflects, will the adult child be able to apply to immigrate at his or her local consulate or through the adjustment of status process if currently in the U.S.

This waiting period caused by the backlogs of available visas can make it extremely difficult for children currently in the U.S. to obtain permanent residency. They run into two potentially catastrophic immigration problems. Children start accruing days of unlawful presence once they reach the age of 18. lf in the U.S. unlawfully, the child will have to leave the U.S. & interview for permanent residency at a consulate abroad and if the child has accrued 6 months or more of unlawful presence, it could be 3 years until the child can re-enter the U.S. (possibly 10 years, in some circumstances).

As shown in the example above, even children of U.S. citizens are not immune from potential immigration problems. Once a child of a U.S. citizen reaches the age of 21 and is then no longer considered a child under federal immigration law, the child becomes subject to and part of the visa backlogs and visa preference system. An immigrant visa is no longer immediately available to the child. In most circumstances, the child has to wait with everyone else.

Unfortunately, just because a child may fall into a visa category and seems to be eligible does not mean that applying for the visa will lead to a green card or permanent residency. Successful family-based immigration depends on weighing the age of the child, their immigration history, CIS processing times, tracking the visa quota system numbers, taking into account the child's country of origin and numerous other factors.

Strategic planning with the advice of a competent immigration attorney may prevent months or even years of family separation and trauma. Sometimes, a student visa, a work-related visa for a child over 21 or a derivative visa for a younger child based on one parent's work visa (the other parent being the LPR or USC sponsor of the immigrant visa case) may buy the necessary time for the child to be able to take advantage of the immigrant visa without having to leave the U.S. at all to obtain a green card.

Lastly, many children may gain permanent residency through adoption, being classified as an orphan or in special immigrant juvenile status. Some children may also benefit from political asylum or benefit from their parents' employer-based green card petitions as derivative family members.

An immigrant child may have options that are better than others, depending on the parents' travel plans, financial situation, and their parents' own immigration status. Immigration practice and procedure changes on a daily basis with the introduction of new laws, regulations, procedural memorandum, state department advisories and court interpretations. Even a child's future in the U.S. can be subject to this constant state of change.

Parents are advised to be proactive in assessing and planning not only for their child's financial well-being and education choices but perhaps even most important, their child's immigration path which affects all else.