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Article Directory :: Legal Articles
WHAT KIND OF VISA DOES THE CHILD OF MY THAI FIANCÉE OR SPOUSE NEED TO ENTER THE UNITED STATES?
The child or children of a Thai fiancée or spouse enters the United States on a derivative visa. This means that a Thai fiancée who enters the US on a K-1 Fiancée visa will be able to bring her child on a K-2 visa, a derivative visa of the K-1. For a Thai spouse who enters the United States on a K-3 visa a K-4 visa will be used to bring in the Thai child. For an IR-1/CR-1 visa, the Thai children will enter the United States on derivative visas (IR-2/CR-2) of their Thai mother.
DO I NEED TO HAVE SEPARATE IMMIGRATION PETITIONS FILED ON BEHALF THE CHILDREN OF MY THAI FIANCÉE OR SPOUSE?
Children of a Thai fiancée or spouse do not need to have a separate K-1/K-3 petition filed on their behalf. However, the US Citizen Spouse should make sure to name all of the Thai fiancée or spouse's children on the K-1/K-3 petition. A failure to name all of the Thai fiancée/spouse's children on the petition could result in difficult immigration experience for the Thai children. A separate I-130 immigrant visa petition must be filed for each of the Thai fiancée/spouse's children before they will be eligible to obtain permanent residence. When the Thai children are seeking to adjust their status inside the US they must either adjust their status with the USCIS Office with jurisdiction for the area in which they live or they can file Form I-485 Application to Register Permanent Residence. The Thai children must be under 21 years of age and unmarried in order to obtain permanent residence as a derivative of their Thai parent. Basically, for the K visas no separate petition is necessary for the Thai fiancée/spouse's children. For the IR-1/CR-1 Visas the Thai children will need separate petitions filed on their behalf.
WHAT IF I DON'T NAME THE CHILDREN OF MY THAI LOVED ONE ON THE K-1/K-3 VISA PETITION?
A child of a Thai fiancée or spouse who is unnamed on the K-1/K-3 Visa petition can still obtain a K-2/K-3 Visa so long as the Thai child can prove that he/she is the unmarried son or daughter of the Thai K-1/K-2 visa holder. The US Embassy in Bangkok asks for a letter from the US Citizen fiancé/spouse acknowledging that the Thai fiancée/spouse has children.
ARE ALL OF MY THAI FIANCEÉE/SPOUSE'S CHILDREN ELIGIBLE FOR A CHILD VISA
All children under the age of 21 and unmarried are eligible for derivative visas of your Thai fiancée or spouse. If the Thai children are over the age of 21 or married they will not be eligible for a child visa. Thai children over the age of 21 may still be considered children for immigration purposes so long as the petition in question was filed prior to the Thai child's 21st birthday.
HOW DOES THE K-2/K-4 THAI CHILD ADJUST THEIR STATUS IN THE US?
The US Citizen must file an I-130 petition on behalf of the Thai child in order for the Thai child to be able to adjust his/her status to permanent residence. If the U.S. Citizen doesn't file the I-130 petition then the Thai spouse may do so as soon as she is a lawful permanent resident of the USA, but the Thai child would have to wait for a visa number, which could take a great deal of time. Please note, the Thai parent will no longer be in K-1/K-3 status, after adjusting to legal permanent residence, hence, the Thai child will not be in lawful K-2/K-4 status, since this is a derivative classification and only exists so long as the Thai fiancée/spouse holds her K-1/K-3 Visa. If the Thai child stays in the United States, without adjusting status to permanent residence, after the Thai fiancée/spouse has adjusted status to permanent residence, then the Thai child will be deemed out of status and thus in the country unlawfully which can cause many problems, not least of which is the fact that it could cause the Thai child to get deported or barred from entering the USA for a certain period of time. For the above reasons it is best if the US Citizens files an I-130 to adjust the Thai child's status as soon as possible.
Thanks for Reading,
This information is made available to provide general information and a general understanding of the law, not to provide legal advice about specific situations or problems. The information contained herein should not be used as a substitute for competent legal advice from a licensed professional in your jurisdiction.
Benjamin W. Hart is a licensed US Attorney and Member of the American Immigration Lawyers Association. He currently lives in Bangkok, Thailand and is the Managing Director of Integrity Legal, a legal service in Thailand. Visit Integrity Legal on the web at: http://www.integrity-legal.com
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