Usually in my immigration apply, I’m speaking to a consumer who has a fiancé or partner out of the country and the subject turns to one of the simplest ways to carry over the fiancé’s or partner’s kids. Many instances, that is the first concern for the abroad fiancé or partner. Sadly, the U.S. Immigration Legal guidelines within the space are about as clear as mud.
For the Marriage Visa, the kid or stepchild should match the USCIS definition of a “Little one” with a purpose to qualify for a Inexperienced Card together with their mom or father after the wedding has taken place. Beneath is the USCIS definition of “Little one”
A “little one” as an single particular person below the age of 21 (a minor) who’s:
- A toddler born to folks who’re married to one another (born in wedlock)
- A stepchild if the wedding creating the step relationship happened earlier than the kid reached the age of 18
- A toddler born out of wedlock (the mother and father weren’t married on the time the kid was born). Be aware: If the daddy is submitting the petition, proof of a bona fide (actual and established) relationship with the daddy have to be provided.
- An adopted little one if the kid was adopted earlier than the age of 16 and has lived with the adoptive mum or dad(s) of their authorized custody for no less than two years
- An orphan below the age of 16 when an adoptive or potential adoptive mum or dad recordsdata a visa petition on his or her behalf, who has been adopted overseas by a U.S. citizen or is coming to the U.S. for adoption by a U.S. citizen, or
- A toddler adopted who’s below the age of 18 and the pure sibling of an orphan or adopted little one below the age of 16, if adopted with or after the sibling. The kid should additionally in any other case match the definition of orphan or adopted little one
The lengthy and the in need of it’s that for the U.S. Citizen partner to sponsor their stepchild, the wedding should happen earlier than the kid turns 18 years previous. It does not matter if the wedding takes place in america or out of the country. The U.S. Citizen would wish to file a separate utility for every stepchild that qualifies. The trick for the Immigration lawyer is to time the functions in order that the partner and kids all interview on the identical time (or near the identical time).
However all just isn’t misplaced if the wedding takes place after your partner’s little one turns 18. After your international born partner receives his or her inexperienced card, they will sponsor their kids. There may be usually some ready time concerned. So long as the kid has not turned 21 and never married, then the wait time is about 2.5 years. If they’re over 21, then the wait time is round 7 years (however longer for Mexico and Philippines). If they’re married, not matter the age, the wait time is round 10 years (once more longer for Mexico and Philippines). Be aware that the U.S. Congress is debating shortening the wait instances as part of Immigration Reform in 2013.
For the Fiancé Visa, the legislation is a little more difficult. U.S. Regulation permits for a international born fiancé to carry his or her kids to america when the Fiancé Visa is accredited. Once more, have a look at the definition of a “Little one”. So U.S. Regulation permits the fiancé and his or her kids in. However what if the couple marries and the fiancé’s kids are already 18 (however not but 21)? Can they arrive to america and get a Inexperienced Card. In keeping with the USCIS, the youngsters can accompany their mum or dad, however they can not modify their standing to that of Everlasting Resident (Inexperienced Card) as a result of they have been over 18. I’ve seen, and labored on, instances the place an area USCIS workplace denied a K2 their Inexperienced Card as a result of the wedding didn’t happen earlier than the K2 was 18 years previous.
There was a court docket case (Matter of Le, 2011) about this, and it was the premise of article I wrote final yr. In keeping with Matter of Le, the age of the kid is “fastened” on the time the kid enters america. So, so long as the wedding takes place whereas the fiancé little one is below 21, the international born mom or father can modify her standing and and add his or her “little one” on the appliance for inexperienced card, and even when the kid is over 21, then the time.
As I stated, it is a difficult state of affairs, and it’ll confuse many a USCIS officer. Many instances, we find yourself suing the USCIS in Federal Court docket to request a Federal Choose to mandate that the USCIS award the “little one” the profit that they search. At that time, the case can get costlier, and the choice is within the palms of the Federal Choose.
Relevant Legal guidelines
The Immigration and Nationality Act is the legislation that governs the admission of all immigrants to america. For the a part of the legislation regarding immigrant standing for kids, sons, and daughters, please see INA § 202, INA § 203 and INA § 204. For Ok visa stepchild, see 8 C.F.R 214.2 (ok) (6) (ii).