- Visa Q & A : My stepdaughter is now a US citizen - can she file an immigrant petition for me?
- August 19, 2010
- Law Firm: Emeterio G. Roa III Esq. - Arlington Office
This is a monthly column in a local Philippine paper that answers questions about US immigration law. This one deals with immigration benefits that could arise out of step relationships.
VISA Q & As
My stepdaughter is now a U.S. citizen: can she file an immigrant petition for me?
Under U.S. immigration laws, American citizens are able to file immigrant petitions for certain family members. These include natural or biological children. Different rules apply, however, for legitimate and illegitimate offspring, and whether it’s the father or mother filing the petition..
Adopted children also qualify. For orphan adoptions, the procedures agreed upon by international convention must be consulted and observed.
In all other cases, the adoption must have occurred prior to the adopted child’s 16th birthday, and valid where it was done. If the adopted child has a brother or sister who will also be adopted by the same parents, the sibling can be more than 16 but below 18 years old at the time of the adoption. Furthermore, the adoptive parents must have at least 2 years of legal and physical custody over the adopted child. Legal custody usually starts with the adoption decree, and physical custody requires that the child live with the adopting parents. Both custody requirements can be met at the same time, or separately - and may complied with before or after the adoption. But adopted children are not able to file immigrant petitions for their biological parents.
Stepchildren qualify as well for immigration benefits, provided that the steprelationship is created prior to their 18th birthday. That is to say, the natural parent must have married the US citizen stepparent before his or her 18th birthday.
There used to be a requirement that the stepparent take an active parental interest in the stepchild. Under current interpretation of the applicable law, that is no longer true. In fact, the steprelationship may even survive the marriage that created it - as in even when the natural parent is dead, the stepparent can still file an immigrant petition for the stepchild.
Unlike adopted children, though, stepchildren may file immigrant petitions for their natural parents. Thus, when a son who is the stepchild of a US citizen becomes a US citizen himself, he can file an immigrant petition for his other natural parent.
But what if the son who is the US citizen wants to file for a stepparent? This situation is a little different. Here, the steprelationship being is used to immigrate the stepparent - not the other way around.
For example, let’s say your stepdaughter is a nurse who immigrated to the US 6 years ago. She is now a naturalized US citizen. If you married your stepdaughter’s natural parent before she turned 18 years old, then US immigration law should recognize your steprelationship. This would be sufficient to confer an immigration benefit. I see no reason why she cannot file what is known as an immediate relative petition for you - her stepparent. As the stepparent of a US citizen, you should still be considered an “immediate relative .Since there is no quota for immediate relatives, visas are always available and you will only have to deal with the processing times (which can be from 6 to 12 months).
Therefore, I believe the answer to your question is yes as long as the steprelationship was created - that is to say, you married her natural father - before her 18th birthday. Otherwise, the answer would be “no”.
Of course, if the marriage is a sham or fraudulent, no immigration benefits may ever be obtained from it.