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U.S. Citizen Parents Sponsoring Step-Children for U.S. Permanent Resident Status
Posted by: ScottMond Law Firm
July 27, 2012
Topic: Family Law & Immigration
As our world society becomes more connected, internationally blended families are becoming the norm. U.S. Citizens who marry a Foreign National spouse who has children may sponsor their step-children as an immediate relative, but the law varies based on the U.S. status of his or her spouse. There are 3 general categories of foreign national spouses which effects the way a step child can be sponsored.
- Foreign National spouse that was already in good U.S. status when he or she married U.S. Citizen.
- Foreign National spouse that came in the U.S. on a valid Visa and later fell out of status before marrying a U.S. Citizen.
- Foreign National spouse that crossed the border illegally, called Entry Without Inspection. ("EWI").
In the case of a U.S. Citizen spouse who marries a U.S. Citizen ("USC") already in good status in the U.S. an application for the children may be filed at the same time for the U.S. spouse and step children. However, if the children are not in the United States, they will need to consular process. Experienced legal counsel is needed to ensure each step of the process is completed properly. Ultimately, step children can receive status at the same time or shortly after their USC's spouse.
Alternatively, If the USC spouse marries a Foreign National that is out of status prior to marriage, a petition may also be filed at the same time for the step children. However, depending on the circumstance, it may be better to file after the spouse becomes a U.S. Legal Permanent Resident ("LPR").
Finally, a Foreign National spouse that crossed the border illegally is the more complex situation. Marriage to USC spouse still does not permit someone in EWI status to adjust status to an LPR. Rather, filing a petition for the step children will trigger a red flag with USCIS as to why the spouse has not been petitioned, or if the spouse is petitioned a request to appear in court may be issued called a Notice to Appear ("NTA").
However, with careful planning under the guidance of an immigration attorney, there is nothing in immigration law that prohibits the filing for step children regardless of the Foreign National parent's EWI status. A plan for addressing the EWI status of the parent is essential however, and an application should never be filed for the U.S. step children unless an experienced immigration lawyer is involved with the process.
Based on the above variable situations, the basic law for sponsoring step children is as follows: if an unmarried child is under 21, and the marriage took place before their 18th birthday, a USC step parent may sponsor their step child.
ScottMond Law Firm
Members of the American Immigration Lawyers Association - AILA