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PETITIONS BY STEPPARENTS
by Michael J. Gurfinkel, Esq.
Recently, a woman came to my office, wanting to
petition her minor (under 21 years of age), unmarried child. She
was a green card holder, and her child was still back in the Philippines.
However, if this greencard (immigrant) mother were to petition
her minor, unmarried child, she could expect to wait several years
before the child would be able to come to the U.S.)
In speaking with this woman in more detail, she
mentioned that she was married to a U.S. citizen, and that they
had been happily married for several years. However, it had been
her plan that she would wait until she was eligible for citizenship,
she would then apply for citizenship, and then petition her own
child.
I then suggested, "Why don't you have your
U.S. citizen 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.
The basic requirements 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. In other words, if a person
marries a U.S. citizen before their child is 18 years of age,
that U.S. citizen spouse would be able to 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.
2. The child is still single, and under 21 years
of age. While the marriage to the U.S. citizen must take place
before the child's 18th birthday, the child can be petitioned
up to their 21st birthday.
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 their green card-parent (approximately
3 ½ to 4 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 child is considered an adult, and the wait for
a greencard is much longer, if the family is from the Philippines.)
So, if you are a green card holder, but married
a U.S. citizen, before your child's 18th birthday, the U.S. citizen
stepparent could petition your child as an "immediate relative."
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 your U.S. citizen
spouse
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