Petitioning children of your spouse from a previous marriage

A stepparent may file an immigrant petition for a stepchild even without the stepparent having to legally adopt the stepchild.  However, before a stepparent may be able to file an immigrant petition for a stepchild, the stepparent – stepchild relationship should have been created before a stepchild turns 18 years old.  This means that the stepparent and the biological parent of the stepchild must get married before the child turns 18 years old. 

If the petitioner can no longer file an immigrant petition for the stepchild because the child has turned 18 years old, the child can still be petitioned by the biological parent after she obtains his or her permanent residency status.  The significance of having a U.S. citizen stepparent file for a stepchild is so that they could avoid the visa backlogs for visa petitions filed by legal permanent residents for their minor children (2d preference category).  But considering the current visa priority dates being processed under the 2d preference category, the stepchild may be able to immigrate sooner than later even if petitioned by a legal permanent resident biological parent.

If the biological parent is about to get married to the U.S. citizen petitioner and the biological parent has a child who is already over 18 years of age, it might be wise to consider postponing the marriage to give the child an opportunity to enter the United States faster.   

Instead of marrying the biological parent, the U.S. citizen petitioner can just file a fiancé petition for the biological parent.  Once the fiancé petition is approved, both the biological parent and child can be issued the corresponding K visas for them to enter the United States.   Upon marriage of the U.S. citizen to the biological parent, both parent and child can file their respective applications for adjustment of status to have their status changed from K to permanent resident status.

The decision whether to file a fiancé petition or an immigrant petition is crucial especially if the child is aging out or turning 21 years of age.  The decision to just get married instead of filing a fiancé petition could mean a long wait of at least eight years before the child can be able to immigrate to the United States and join the biological parent.

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Atty. Dennis E. Chua 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, Sacramento 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; (916)449-3923

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