Recently, a woman came to my office, wanting to petition her minor, unmarried child. She is a green card holder, and her child is in the Philippines. If she were to petition her child as a green card holder, it would take about 4-6 years before she could join her in America.
In discussing her case, she mentioned that she is married to a U.S. citizen, and that they have been happily married for several years. However, she wanted to wait until she becomes a U.S. citizen, and then petition her child.
I then suggested, “Why don’t you have your husband petition your daughter?” She looked at me with shock and surprise. “But my husband never adopted my child, so how could he petition her?” I then explained to her that a stepparent is able to petition a stepchild, without having to adopt the child.
In this case, the woman's American citizen husband could have petitioned her daughter (his stepchild) years ago. There was no need for her to either wait to become a U.S. citizen or to petition her own child while she is a green card holder, thus avoiding the several years wait before the child could join her in U.S.
The basic requirement or eligibility for an immediate relative petition by a U.S. citizen stepparent are:
1. The step-relationship must have been created before the child was 18 years old.
2. The child is still single, and under 21 years of age.
In other words, if a person marries a U.S. citizen before his or her child is 18 years of age, that U.S. citizen spouse could petition the stepchild as an “immediate relative”. There is no need for the stepparent to adopt the child, or for the natural parent to be the petitioner.
As shown above, this could have very important consequences in family petitions. For example, if the natural mother or father is a green card holder, but the stepparent is a U.S. citizen, the stepparent can petition the child as an immediate relative. Thus, the child can avoid the backlog or long waiting time he/she would encounter if petitioned by the green card holder parent (approximately 4-6 years), and come to the U.S. much faster. This is especially important if the child is near 21 years of age. (Once a child reaches 21, the wait for a green card is much longer, if the family is from the Philippines.)
So, if you are a green card holder, and married to a U.S. citizen, the U.S. citizen step-parent could petition the child as an immediate relative, so long as you married the citizen before your child was 18 years old, the child is still single and under 21 years of age.
You should seek the advice of a reputable attorney, who can analyze your situation and determine whether you can bypass the long waiting time involved in a petition by a green card holder, and, instead, take advantage of a petition by a U.S. citizen.
Michael J. Gurfinkel has been an attorney for over 24 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California.
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(This is for informational purposes only, and reflects the firm's opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)