By Jennifer Whitlock
Families in America look a bit different today from what they did only a few decades ago. According to the Pew Research Center, about 16% of children in the U.S. are living in “blended families.” “Blended families" are households with a step-parent, step-sibling, or half-sibling. As immigration attorneys, here are some things to keep in mind to make sure everyone gets to stay in the family.
Immediate Relative Petitions
First, how is a step-child or step-parent relationship created for immigration purposes? A stepchild relationship is created whenever a parent of the child marries someone (other than the child’s other parent) before the child’s 18th birthday.” Once such a relationship is established, two different types of immediate relative petitions are possible.
Immediate Relative Petitions for Step-Children
U.S. citizens (“USC”) and lawful permanent residents (“LPR”) do not have to adopt their spouse’s children to achieve their immigration to the U.S. However, USCs do have to file separate Form I-130 Immediate Relative Petitions for their spouse and any step-children. This is true even if they are immigrating at the same time. Do not make the mistake of thinking step-children can come as derivatives of their biological parent’s petition.
By contrast, LPRs only have to file one Form I-130 Immediate Relative Petition for their spouse and step-children because they are not immediate relatives and have to wait until a visa is available. Watch out for an LPR who decides to naturalize while their preference petition is pending as this can have unintended consequences for derivative. Namely, having to file a new immediate relative petition for their derivative step-children.
If a step-child is already in the U.S., this scenario requires some careful planning. Minors under 18 years old do not accrue unlawful presence in the U.S. for purposes of inadmissibility under the 3 & 10 year bars. However, U.S. Embassies insist that minors do accrue unlawful presence for purposes of the permanent bar. A step-child who cannot adjust their status in the U.S. because they entered without inspection may still be able to receive an immigrant visa at a U.S. embassy abroad. But watch out for permanent bar issues.
Sending a step-child to consular process creates a list of concerns to consider. For example, who will go with the child back home if their biological parent is not able to accompany them? Will the natural parent (if still living) consent to the process? Who will take them to their medical exam and visa interview? Many Embassies also inquire heavily about the immigration status of the biological parent (though still routinely approve step-children petitions even if biological parent is undocumented). Attorneys can assert that a step-child petition is independent of a petition filed for a child’s parent.
Immediate Relative Petition for Step-Parent
Just like a USC or LPR can petition for a step-child, the reverse is also true. A U.S. citizen step-child may apply for their step-parent or step-sibling to receive an immigrant visa if they are 21 years old. If the step-parent is in the U.S., they may also be eligible to adjust their status.
This immigration benefit is allowed even under some unusual scenarios. For example, Matter of Pagnerre, confirms that a step-child may petition for their step-parent even if their biological parent has passed away as long as the step-parent and step-child continue to have a relationship. Also, a step-parent remains a parent even if their “child” marries or is over 21 years of age, as long as the step-parent relationship exists.
A petition for a step-parent may also be possible if the biological parent and step-parent have divorced. The Board of Immigration Appeals (BIA) held that a step-child may still petition for their step-parent or siblings as long as the relationship with their step-parent or sibling continues to exist according to Matter of Mowrer and Matter of Mourillon. If the marriage ends in annulment, however, no petition may be filed.
Many of us are familiar with the removal of conditions process for conditional resident spouses. However, sometimes step-children can get caught up in the mix when their biological parent’s marriage fails.
Most of the time, a dependent child gets to be included on their parent’s Form I-751 Petition to Remove Conditions on Permanent Residency. This is permitted when the dependent child acquired their status at the same time or within 90 days of their parent. A separate Form I-751 is filed when a child cannot be included or the conditional resident has died.
There are two common complications that can arise for these dependent children. The first is where no I-751 is filed on their behalf. The second is when the dependent child’s parent becomes estranged from their USC or LPR spouse. In both situations, a dependent child could face the termination of their conditional resident status.
In the first scenario, a late-filed I-751 by the child may be submitted along with an explanation as to the lateness. This can be done many years after the conditional period has ended and even if the conditional resident parent has returned home. In the second scenario, the dependent child will need to file an I-751 along with a request for a waiver of the joint filing requirement. With a waiver, the following has to be established:
- You have been battered or subject to extreme cruelty by the petitioner or by their conditional resident parent or
- Termination of your status will result in extreme hardships.
In both situations, it remains up to the dependent child to provide evidence of their parent’s bona fide marriage. That means they have find proof of the biological parent’s married life with the USC or LPR petitioner. This can be incredibly challenging but not impossible. For example, an attorney can submit a detailed written statement on behalf of the dependent child. Testimony of witnesses is a form of evidence but their declarations need to be as detailed as possible. Any independent sources of evidence should be included if available. Most often, an in-person interview will follow.
U.S. Citizenship for Step-Children
Finally, a USC step-parent can make sure that their step-child is secure in the U.S. by seeking their U.S. citizenship through the N-600 process. A step-child born overseas may receive US citizen pursuant to INA § 320 which governs acquisition of citizenship after birth.
Here is where the difference between who is a “child” for visa petition purposes and who is a “child” for naturalization purposes matters greatly. A stepchild is ineligible for citizenship or naturalization through the U.S. citizen stepparent, unless the stepchild is adopted before the age of 16. All the other requirements for acquisition of citizenship after birth must be met.
Family unity is meant to be a hallmark of our country’s immigration laws. By becoming knowledgeable about common issues arising for blended families, we can make sure that these modern day relationships can thrive for all members involved.