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STEPCHILD CAN PETITION STEPPARENT
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
My husband has a 25-year old U.S. citizen child from a previous
marriage. At the time we married, my stepson was only 17 years
old. My husband and I would both like to get greencards, and want
to know the best way to go about doing it. I know that my U.S.
citizen stepson can petition his father as an "immediate
relative", enabling my husband to get a greencard right away.
But what about me? Does my husband have to first get his greencard
through his son's petition and then petition me as a spouse of
an immigrant (Category F-2A), which takes at least 4 ý to 5 years
to process? Is there a faster way for both me and my husband to
get our greencards?
Very truly yours,
T.S.M.
Dear T.S.M.:
In certain circumstances, a stepchild could directly petition
the stepparent as an "immediate relative", just as though
the stepparent was a biological parent. Therefore, if the legal
requirements are met, it could be possible for your stepchild
to petition not only his father, but you as his stepmother at
the same time, such that you both get greencards together. The
basic requirements for a stepchild to petition the stepparent
are:
- The stepparent/child relationship must be formed
before the child reaches the age of 18. Therefore, if a person
marries the parent of a U.S. citizen child before the child's
18th birthday (i.e. when the stepchild is 17 years
of age or younger), then the step-relationship has been formed
for immigration and petitioning purposes. If the marriage takes
place when the U.S. citizen child is 18 years of age or older,
then the child cannot petition the stepparent any more.
- It is not necessary for the stepparent to adopt
the child. All that is needed to form the petitionable relationship
is that a valid marriage takes place while the child is below
18 years of age.
- The child must be at least 21 in order to petition
a parent or stepparent. NOTE: Many people think that a child
can petition parents or stepparents when the child is only 18
years of age. That is not true.
-
For immigration purposes, a stepparent is also
considered an "immediate relative" of the U.S. citizen
child, and is, effectively, on equal footing with the biological
parent for purposes of the petition.
Accordingly, in your case, since you married your
husband when his U.S. citizen child was only 17 years old, the
step-relationship for immigration purposes was formed. Your U.S.
citizen stepchild is now 25 years old, and, therefore, that child
could petition both you and your husband for greencards. It is
not necessary for your husband to first get his greencard and
then petition you.
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