Step-Children of US Citizens

Posted on May 23, 2006 by Warren Wen | Category: Immigration

How U.S. Immigration Law Defines “Children” for Step-Children of U.S. Citizens

Under the U.S. immigration law, a “child” is generally defined as an unmarried person under twenty-one years of age.  Nevertheless, in some situations, the term ‘child’ is defined differently, and this can lead to serious consequences if petitioners do not have a correct understanding of it.  For example, in order for a U.S. citizen to be able to petition for his step-child, the child cannot have reached the age of eighteen years at the time the marriage creating the stepparent-stepchild relationship occurred.  If the step-child has reached the age of eighteen before his biological parent marries the U.S. citizen, the U.S. citizen can no longer apply for a green card on behalf of his step-child as an immediate relative.  As a result, the step-child has to wait for much longer in order to apply for his green card.  I will introduce a few sample cases to help the understanding of the readers regarding this matter.

1. Ms. Li asked:
“I came to the United States with my 14 year-old son on a traveler’s visa in 2001, but soon became illegal.  One year later, I got married to a U.S. citizen, and now I want to apply for green card.  Can my spouse petition for my son’s green card in the U.S. as well?”

According to U.S. immigration law, the child will be treated as an immediate relative of the step-parents if the marriage creating the stepparent-stepchild relationship took place before the child’s 18th birthday.  There is no quota restriction for immediate relatives and the step-child can apply for a green card as long as he/she entered the U.S. legally.  In Ms. Li’s case, the boy entered the U.S. legally with his mother, and since the marriage happened before the child’s 18th birthday, his stepfather can file a petition for him based on an immediate relative relationship.

2. Mr. Zhang asked:
“I came to the United States legally one year ago, but I am illegal now. I got married with a U.S. citizen last month.  While waiting for the decision, I have a 20 year-old daughter who is living with my divorced wife in China.  If I wanted to bring her to the United States, can my present wife petition for my daughter as her immediate relative?”

In this case, Mr. Zhang’s wife cannot file petition for his daughter because his daughter is not considered an immediate relative of his spouse since their marriage took place after his daughter’s 18th birthday.  If Mr. Zhang wants to bring his daughter to the United States, there are two possibilities.  One is for Mr. Zhang to file a petition for his daughter as second preference (spouses and unmarried children of green card holders) after he gets his green card.  His daughter will be qualified for this category as long as she is unmarried.  The other option is for him to file a petition for his daughter (after he becomes a U.S. citizen) as first preference (unmarried adult children of U.S. citizens) or third preference (married adult children of U.S. citizens).

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.