Can I get a green card for my fiancé’s children?
Yes – but you’ll have to get married to your fiancé first. Your fiancé must become a permanent resident in order for your fiancé’s children to get a green card, and to do that, you and your fiancé must first be married.
What is a Child?
It might seem a silly question, but the USCIS has set very definite guidelines for what constitutes a “child” for the purposes of immigration. Section 101(b)(1) of the Immigration and Nationality Act defines a “child” as “an unmarried person under twenty-one years of age.”
The good news is that children are considered “immediate relatives,” which means that their immigration is not subject to annual visa quotas. They will be given priority status to immigrate.
Complications may arise if your fiancé’s children are married or over 21. This may cause delays in having their status adjusted to permanent residency, whether they are already in the country or not.
Before the wedding: Bringing the children along
If you are already a citizen, you can file a form I-129f to have your fiancé come into the country under a K-1, nonimmigrant fiancé visa. A K-1 grants you and your fiancé a brief window of 90 days to get married. After you’re married, your new spouse can then file an I-485 to apply for a permanent residency (“green card.”)
When you file the I-129f, you can also apply to have your fiancé’s children come along with them as “K-2s”. This is a non-immigrant status that allows them to stay with you and your fiancé during the 90-day marriage window.
If your fiancé has entered the country on a K-1 fiancé visa, you have 90 days to get married. This number is non-negotiable; it cannot be extended. Don’t wait to get hitched – your success in getting green cards for your fiancé’s children is contingent on your fiancé being granted permanent residency, and marriage is the best way get there.
For more detailed information on securing a green card for your fiancé, read “How Can I Get a Green Card for My Fiancé?”
After you’re married, your fiancé can then file an I-485 to apply for their green card. Only after your fiancé has a green card will they be able to apply for green cards for their children.
Adjustment of Status
Once your spouse has had their status adjusted to permanent resident, they can then apply for green cards on behalf of their children.
As a K-2, the child’s status is essentially tied to the status of their parent. They can only have their status adjusted after their parent, but never before. Once the K-1 is granted permanent residency, their unmarried children under the age of 21 can then file form I-485 to have their status adjusted to permanent resident.
In practice, a child’s I-485 application for permanent residence is often filed at the same time as his or her parent’s application, but approval of the child’s application will be based in large part upon the approval of the parent’s application.
Possible complication: preserving “child” designation
It is possible that your fiancé’s children could lose their status as a “child.” This happens when they no longer meet the USCIS definition of a “child;” that is, they are no longer: a.) unmarried, and/or; b.). under 21.
If the child turns 21 while the I-485 is still pending, their designation as a “child” may be protected under the Child Status Protection Act of 2002 (CSPA).
- If your spouse was already a citizen at the time of filing the I-485 for the child, the child’s age will be, for all intents and purposes, “frozen” at the date of filing; even if you filed the day before the child’s 21st birthday, they would stay 20 in the eyes of the USCIS while their I-485 is pending.
- If your spouse is a permanent resident when the I-485 is filed and they later become naturalized, their child’s age will be “frozen” at the date of their (the parent’s) naturalization.
You can read our companion article “What is the Child Status Protection Act?” if you need to know more.
As you can see, there are many possible scenarios, based on the status of both your fiancé and your fiancés child, which could affect your course of action and possible outcomes. If children are part of the mix and you’re not sure how to proceed, we highly recommend that you discuss with an attorney to better understand your options.
An experienced immigration attorney can help you work out the timing and planning of your application process.