After Parents Divorce, Can A Step-Child Petition A Step-Parent For Permanent Residence?
“Can my step-son immigrate me?
My wife and I recently divorced. We lived in Kansas for several years before moving to California and getting married here. Neither one of us has valid immigration documents. We did not have any children. But she had a son from a previous relationship whom I took care of and raised during our entire seven years together.
He was born in the United States. He has told me that he would still like to sponsor me for a green card as his stepparent. Is this possible, even though his mother and I are now divorced and living apart?”
(Submitted by Mark X., Lake Elsinore, CA)
The short answer is yes. U.S. born step-children are allowed to petition their immigrant step-parents for permanent residence.
Similar to sponsoring a biological parent, the process begins with Form I-130, Petition For Alien Relative. Several requirements must be proved for a successful petition.
I’ll outline them below.
Green Cards For Step-Parents:
4 Questions For Sucess
- Does the step-child meet the filing requirements for petitioners under immigration law?
- When did you marry the biological parent?
- How old was the petitioner step-child when you married his or her parent?
- Is your relationship with your step-child ongoig?
Step-Child/Step-Parent Filing Requirements
Let’s start with your step-son’s requirements. In order to file immigrant relative petitions for a parents, whether it is a biological parent or a stepparent, the basic rules are the same:
- Your step-son must be a United States citizen.
- Your step-son must be 21 years or older.
Although your question mentioned that your step-child was born in the U.S., it did not address whether he is 21 years old at present. If he is not 21, you’re out of luck until he crosses that age threshold.
Even if those two steps are met, there are additional issues to consider before a step-child can file an immigrant visa petition for his or her step-parents.
Age Of Step-Child At Time Of Step-Parent Marriage To Biological Parent
The marriage between the natural parent and the immigrant parent must have taken place before your step-child turned 18.
Again, I’m not sure how this applies to your situation.
You said that you raised your step-son for the seven years of your relationship with his mother. But you did not state if you were married to her for seven years.
This might trip you up. It could prevent you for showing a bona fide parent-child relationship for the required time period.
Perhaps you lived with them for 6 years, then married your ex-wife. When you married her, your step-son was 19 years old. In that situation, he is not allowed to petition you for green card benefits as his step-parent – even if you began to raise him when he was 13.
In other words, it is his age when the two of you married, not when you began to live together as a family that establishes your eligibility to be sponsored by a step-child.
There’s another possibility here, even if your step-son was older than 18 when you married your ex-wife in California.
Once more, I am guessing, based on what you noted in your question.
It might preserve your step-son’s ability to immigrate you.
Did You Have A Common Law Marriage?
Yet, because you lived in Kansas, your case may fall under the rules for “common law marriages.”
In states which recognize common law marriages, such a marriage confers many of the same rights and responsibilities upon a couple towards each other regarding issues like property, alimony, child custody, and child visitation.
WHAT IS A COMMON LAW MARRIAGE?
A common law marriage is one in which a couple lives together and holds themselves out to friends, family and the community as being married but never formalize the marriage.
There are four general requirements in most common law states. Besides living together and holding themselves in public as a married couple, the couple must be eligible to get married and intend to be married.
Common law marriages in the United States are only valid in a few states.
In these states, a common law marriage constitutes a legitimate marriage.
In addition, when couples who are in a common law marriage move to another state which does not recognize such relationships, many of the new states will nonetheless accept the legality of the common law marriage based on the couple’s time in if their former state.
This means, if you were still living in Kansas, your close relationship with your ex-spouse and step-son would equal a valid marriage. And this would allow your step-son to petition your for immigration benefits so long as he meets his two filing requirements.
California, on the other hand, does not recognize common law marriages in its own state.
But it does recognize common law marriages from another state if it was legal there. So if you and your ex-wife had a legitimate common law marriage in Kansas, then it is still valid here.
What does this mean for immigration purposes?
In a common law marriage state, step-children can potentially petition step-parents even if the biological parent and the step-parent never formally married.
In your case, even if you did not marry your ex-wife before your step-son turned 19, but you and she held each out as a married couple for several years before that time, he can still immigrate you as a step-parent for a green card.
Is Your Step-Parent Relationship With Your Step-Child Ongoing?
There is one more requirement that you should know about.
Your step-relationship must be ongoing.
If you stopped all interaction with your step-son during your separation and divorce from your ex-wife, that could cause the government to deny the visa petition filed on your behalf.
The rule is that as long as the step-parent and step-child relationship continues, the family-based petition is valid, despite a divorce with the natural parent.
Because you mentioned that your step-son wants to petition you, I do not perceive this as a problem to worry about. Of course, USCIS could still request some evidence pertaining to the ongoing nature of your step-parent, step-son relationship.
A Word Of Caution: Before Filing, Know Your Next Green Card Step In Advance
Before you file a petition, you should be clear about the steps you’ll need to take once it is approved.
Because your child is a U.S. citizen, you’ll be able to immediately proceed to the next stage: applying for permanent residence.
But should you move so quickly?
This concern pertains to whether you qualify for seek adjustment of status versus consular processing.
This is why before closing, I would like to touch on your lack of valid immigration documents.
The lack of such documents could mean that (a) you entered the country without inspection or (b) you entered lawfully but overstayed your visa. (It could also mean that you once had legal status but lost it due to convictions or other immigration violations. Such crimmigration matters, if they exist, are beyond the scope of this Q&A.)
If you entered lawfully but overstayed an immigrant visa, then you may still qualify for adjustment of status.
If you entered the country without inspection, then you will likely need to pursue consular processing. In this scenario, you have to return to your home country for a green card interview.
Moreover, because you have lived in United States without permission for several years, you will likely need to apply for and win an I-601 waiver of inadmissibility to re-enter the U.S. lawfully. Success in these cases is far more difficult to achieve.
In short, remember the filing the I-130 immigrant visa petition is only the first step in the permanent residence process.
It is crucial you think carefully – and perhaps consult with an experienced immigration lawyer – before submitting your paperwork to USCIS.
By Carlos A. Batara, Filed Under Q&As: Family-Based Visas And Immigrant Petitions.
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