When deciding whether to pursue a fiancé or spousal visa in order to gain entry to the United States, one of the primary concerns for many couples will be whether the children of one or both of the parties can also gain entry.
Generally, the visa application process for children is similar to that of their parents. However, in the case of stepchildren, there will be a few additional issues that need to be addressed.
This article will discuss how children, and stepchildren, in particular, are treated under the various visa options that may be available to you, depending on the circumstances of your case.
General Considerations: Who are “Children?”
Generally, for purposes of visa applications and entry, a “child” is defined as an individual who is under 21 years of age at the time of filing and is unmarried.
Additionally, a child of a foreign citizen will be considered as a member of the same immigration category as the parent.
Spousal Visas and Stepchildren
When you are pursuing a nonimmigrant marriage (K-3) visa, and you wish to have your child accompany you, your child’s visa will be based on the child’s relationship to your United States citizen petitioner spouse.
Here, too, the relationship between your spouse and your child does not have to be biological, but may be based on the fact that your child is the stepchild of your spouse.
However, before this stepparent/stepchild relationship can be the basis for a visa, you must establish that your marriage to your petitioner spouse took place before your child turned 18.
This is important, and means that the relationship must have been created before the stepchild turned 18.
If this has not happened, you may have to wait until the biological parent has gained permanent residency status, and then have that parent petition on the child’s behalf.
This approach has the disadvantage of not allowing your child to take advantage of the priority processing that comes from having a citizen petitioner.
A reassuring benefit is the fact that if your petitioner spouse is a United States citizen, and you can establish that your child is, in fact, your spouse’s stepchild, your child will be considered the immediate relative of your citizen spouse.
This means that your child will be given top priority in the immigration process, and your child will be on the same time schedule as you for receiving his or her visa and green card.
However, in order for your child to benefit from this classification, he or she must remain unmarried. If the stepchild marries before the government issues his or her green card, the stepchild will drop down into category 3 of the Visa Preference System, which means that you can expect longer waiting times.
A concern may arise over what happens if the stepchild’s 21st birthday is before the green card issuance date.
Fortunately, if the stepchild turns 21 before his or her green card is issued, the child should still be entitled to the same preferential treatment as the immediate relative of the United States citizen, provided that the child was still under 21 at the time that the petition was filed.
If you would like to read more regarding children who may age out of potential visa petition, you can read more about the Child Status Protection Act here on our site.
The Application Process
If you are the United States citizen petitioner, you must also submit a Form I-130 Petition for Alien Relative, along with the appropriate filing fee, for each of your stepchildren.
You must also submit proof of your United States citizenship, such as your birth certificate, passport, or naturalization certificate. You’ll also need to include your stepchild’s birth certificate.
Finally, you’ll need to submit evidence that establishes your marital relationship with your stepchild’s biological parent, in the form of a marriage certificate.
If either you or your stepchild’s biological parent, has been married previously, you’ll also need to submit proof that any such prior marriage has been legally terminated.
This may be done through a divorce or annulment decree, or a death certificate. Once Form I-130 has been received and processed by the government, you’ll be notified and provided information regarding further steps.
Marriages Less Than Two Years Old
The government has an interest in preventing sham marriages that are entered into solely for immigration purposes.
In order to cut down on the use of such marriages, the government pays closer attention to marriages that are less than two years old.
If the marriage creating the stepparent/stepchild relationship with your spouse’s child is less than two years old at the time that permanent residency is granted, your spouse and your stepchild will be given “conditional” permanent residency.
In order to remove the conditions on your stepchild’s residency, you’ll need to submit form I-751, Petition to Remove Conditions on Residence, within the 90 days prior to the expiration of the stepchild’s conditional green card.
If your spouse and your stepchild were given conditional permanent residency status at the same time (or within six months of each other), your stepchild can be included in your spouse’s Form I-751 petition to remove conditions.
Otherwise, you’ll need to submit a separate petition for your stepchild.
If you have been married for less than two years when the U.S. citizen spouse petitions for you, it’s a good idea to read a little about I-751 applications to remove conditions on residency before you get started.
Going through the immigration process with stepchildren can be a confusing endeavor.
What steps you’ll need to take will depend on the circumstances of your particular situation, what type of visa you’re pursuing, and the legal status of the petitioner.
As always, it’s important to carefully and completely follow all of the steps, and doing so will lead to rewarding results.