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If Wife Deported, Can Husband Immigrate Stepchildren?

QUESTIONS AND ANSWERS

If I Am Facing Deportation, Can My Husband
Immigrate My Children From Another Marriage?

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Question:

“About 3 ½ years ago, I married a U.S. citizen. He filed paperwork for adjustment of status so I could become a green card holder. We did not file documents for my two children from my prior marriage. We went to the interview, but the application was denied.

Two days ago, I received a letter saying I have to go to the Los Angeles immigration court for a removal hearing. A friend told me that even if I get deported, my husband can still file to immigrate my 13 year-old daughter and 11 year-old son. I want to know if this is possible.”

(Submitted by Norma H., Cathedral City, CA)

Answer:

You have a potentially tricky and hard case.

I see a couple of issues here.

Even though you did not request feedback on your application, I’d like to briefly touch on that issue, as well as your immigration case. Why? Because the reasons for the denial of your adjustment application could possibly affect the petitions for your children.

Without knowing the exact reasons for the denial of your permanent residence application, it’s difficult to me to comment on such issues. Yet, there are some general things you should know before taking any actions.

Anyway, I’ll return to your immigration court case in a moment.

Instead, let me first address your concerns about your children.

The short answer to your question seems to be yes. Based on what you have explained, I think your husband should be able to file to immigration petitions for your children as his step-children.

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The government can make decisions on their applications to become permanent residents independent from yours. They are both still under 18 and your relationship with your husband started several years ago. It appears the major requirements to file family-based petitions for step-children are met.

However, as I said above, the reasons for your green card denial could also impact your children’s applications.

Second, your efforts to obtain a green card through your husband may not be over.

Under certain conditions, even though you are facing deportation charges, you can renew your application for permanent residency at court. Sometimes, this decision is made by the immigration judge. Other times, you will be sent back to the same office which denied your first attempt.

Again, I must note that the reasons for your denial could hinder such efforts.

Even if you are ineligible for adjustment of status, you may have another option at immigration court.

Perhaps you qualify for cancellation of removal. Given the information you provided, this would likely be based on your relationship to your husband, and how much he might suffer if you are deported from the United States.

If your husband is able to immigrate your children as step-children before your deportation case is over, their hardship might also become important factors in the judge’s decision to “cancel your removal” and let you remain in the United States or not.

Before closing, I want to let you know that your situation is not simple. You should seek the advice of an immigration lawyer to avoid the potential risk of separation from your husband and children.

By Carlos A. Batara

(Filed Under Q&As: Family-Based Visas And Immigrant Petitions)

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