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 green cards, 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 green card right away. But what about me? Does my husband have to first get his green card through his son’s petition and then petition me as a spouse of an immigrant (Category F-2A), which takes at least 4 to 5 years to process? Is there a faster way for both my husband and me to get our green cards?

Very truly yours,

Leah

Dear Leah:

In certain circumstances, a stepchild could directly petition the stepparent as an “immediate relative,” just as though the stepparent was a biological parent. The stepparent does not have to adopt the U.S. citizen child. Therefore, if the legal requirements are met, it could be possible for your stepchild to petition not only his father, but also you, as his stepmother, at the same time, such that you both get green cards together. The basic requirements for a stepchild to petition the stepparent are:

1. The stepparent/child relationship must be formed before the child reaches the age of 18. Therefore, if someone marries the parent of a U.S. citizen child before the child’s 18^th 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 anymore.

2. 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.

3. 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. Marry before the child’s 18^th birthday, and wait for the kid to reach 21 to petition you.

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 green cards. It is not necessary for your husband to first get his green card and then petition you.