US immigration laws permits green cards for stepchildren as well as for stepparents under certain circumstances. There are some special rules that apply in these cases. To be considered a stepchild, the marriage between the biological parent and the stepparent must have taken place before the stepchild’s 18th birthday. In many other respects, the process is similar to other child and parent green card applications.
Many people are not aware that US immigration law considers stepchildren to be just like other children as long as some basic requirements are met. This is because in most parts of immigration law that reference children, a specific definition of a “child” applies. That definition includes stepchildren.
Section 101 of the Immigration and Nationality Act defines a child for immigration law purposes (but only for titles 1 and 2 of the act). In immigration law, all children must be under 21 years of age. The law typically refers to older children as “sons and daughters” and they are treated differently in many respects. The stepchild definition says that a child includes:
“a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred”
INA Sec. 101(b)(1)(B)
This means that as long as the marriage between the stepparent and the biological parent occurred before the child’s 18th birthday, the law considers the child to be a stepchild. In some states, common law marriage allows the person to backdate the actual date of marriage. This can potentially be done even if the parents later married in a normal ceremony.
Stepchildren are not always considered children for immigration purposes. The most common situation that they aren’t considered to be children is for deriving citizenship from a US Citizen parent.
Based on this definition, there are greencards for stepchildren much like there are for biological children. A stepmother or stepfather can file an I-130 family petition for their step child if they meet all the requirements. If the stepparent is a US Citizen, the children may also be eligible to apply for a green card at the same time. Note, however, that the petition and green card applications are actually separate processes. Schedule a consultation with an immigration lawyer to review the entire process and confirm eligibility.
The simplest and most common situation is that a US Citizen marries a person who has children already. Assuming that the spouse and children entered with a visa, the US Citizen can then file I-130 petitions for the spouse and the children. Separate I-130 petitions are required for each person, even if they are applying together. Listing children in an I-130 does not mean that they are included as derivatives – there are no derivatives allowed if the relationship is considered to be “immediate relatives.” The spouse and children will also need to file I-485 adjustment of status applications in many cases. Again, each person must have their own I-485 with a separate fee, and the cases are technically separate but often decided at the same time.
Sometimes, people are not eligible to adjust status in the US, but this is not unique to the stepchild process. For example, if a child entered the US on a visa with her parent, but overstayed her status, she may be ineligible to adjust status in some cases. This is true for stepchildren of a lawful permanent resident. However, the stepparent can still file the petition for the stepchild, who can often consular process by attending an interview in her home country.
Similarly to stepchildren, there are also green cards for stepparents if they meet the requirements. Stepparents can also be petitioned for by their stepchildren. The same definition of a child that applies to help the child also applies to the parent petitions. Petitions for parents follow different rules, however. In most circumstances, a child must be a US Citizen and over age 21 in order to file a petition for a parent. Stepchildren must also prove that the marriage which formed their stepchild relationship occurred before they turned 18.
In many cases where a stepchild relationship exists, the spouse would be the person filing the petition rather than their child. But there are some circumstances where it would still be helpful. One example would be if a parent came to the US, overstayed a visa, and then had a child in the US. The child is a US Citizen, and we can assume that their parent gets married at some point before the child turns 18. Both the biological parent and stepparent are out of status but entered on visas. Once the US Citizen child turns 21, he or she may be able to file for both the parent and stepparent.
It’s important to review all adjustment of status cases with a lawyer, because there are many requirements and getting denied can lead to deportation. In addition, completing the paperwork and forms has become more and more burdensome over the years. Schedule a free consultation to discuss a particular case.
Green Cards and Permanent Residency