Everyone is familiar with the story of Cinderella and her evil stepmother who made her life miserable. The often and much maligned stepmother is the fairy tale character everyone loves to hate. In real life, however, there are many stepparents who do not fit the mold of Cinderella’s stepmom. To the contrary they learn to love and care for their stepchildren and many times they in fact are the only parents that the child grows up knowing. This is such a story.
Ferdie and Marie met while the two were members of the college glee club. After graduation from college, the two lived together and had two children, Cindy and Ferdie, Jr. Marie who was the more adventurous of the two yearned to go to the United States and try her luck in Hollywood. Despite Ferdie’s vehement objection, Marie left for the United States. At first, Marie communicated frequently, but as time went by she called less and less until the calls finally stopped. Several years after Marie left, Ferdie married Isabel. Since Isabel could not have children of her own, she showered all her love and affection on Cindy and Ferdie, Jr. She attended every school event, helped with their homework, prepared nutritious baon for school and when they were sick, it was Isabel who would stay up to the wee hours of the evening to care for them until they got better.
Meanwhile, Marie was having a tough time in the United States. While she did find work in Hollywood it was to be as a caregiver to an aging Hollywood star who suffered from Alzheimer’s. After being in the United States for over ten years, she married Brad, a US citizen and finally obtained a green card. At the time of Marie’s marriage to Brad, Cindy was 16 and Ferdie, Jr. was 20. One day, Ferdie gets a call from Marie telling him that she and her new husband would like to bring their children to the United States.
Under immigration laws, included in the definition of a child is a stepchild who is under 21 years of age, whether legitimate or not, as long as the child was under 18 years old at the time the step-relationship was created.
Brad as the stepfather can file an immigrant petition for Cindy, but not for Ferdie, Jr. For immigration purposes, Cindy is considered his stepdaughter because at the time of his marriage to Marie, Cindy was below 18 years old. Since Cindy is also below 21 years old, she is considered an immediate relative—as a minor stepchild of a US citizen and an immigrant visa is immediately available to her.
Ferdie, Jr. on the other hand was already 20 years old at the time of Brad’s marriage to Marie and hence, for immigration purposes does not qualify as his stepchild. However, Marie can file an immigrant petition for Ferdie, Jr. as her child as soon as she obtains her green card. However, as the child of a lawful permanent resident, a visa is not immediately available and he will have to wait many years before he will be able to immigrate to the United States.
Fast forward six years later, Cindy is now 21 years old and recently became a US citizen. In the years following her arrival, Cindy managed to develop a loving and caring friendship with Marie. However, Cindy never forgot the motherly love and attention that was lavished on her by Isabel. Even after Cindy left for the United States, Isabel would send through relatives going to the United States Cindy’s favorite pastries. Cindy, who grew up to be equally thoughtful and caring would periodically send balikbayan boxes containing pasalubongs for her father and Isabel. The highlight of Isabel’s life is her weekend conversation with Cindy via webcam. Thus, immediately after becoming a US citizen, Cindy consulted an immigration attorney to bring not only her father but also Isabel to the United States. Since Isabel and Ferdie were married prior to Cindy’s 16th birthday, Isabel is considered her stepparent for immigration purposes. Parents (including stepparents) of US citizens are considered immediate relatives for immigration purposes and immigrant visas are immediately available to them.
Unfortunately, Ferdie died before an immigrant petition can be filed by Cindy. Would that affect, the immigrant petition Cindy is filing on behalf of Isabel? The termination of the marriage that created the stepparent-stepchild relationship does not automatically terminate the stepparent-stepchild relationship provided it can be shown that there is a continuing stepparent-stepchild relationship after the termination of the marriage. In this case, the marriage creating the stepparent-stepchild relationship ended with Ferdie’s death. However, if Cindy and Isabel can show that despite Ferdie’s death, they continue to maintain a stepmother-stepdaughter relationship, Isabel will still be considered as Cindy’s stepmother for immigration purposes and the immigrant petition that will be filed by Cindy on behalf of her stepmother Isabel may still be approved.
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Atty. Jean S. Tinsay is a partner in the Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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