You become a stepchild if your parent marries another person who is not your biological parent. A stepchild, who is not related by blood to a stepparent, is legally as equal as a biological child under U.S. immigration law, consistent with the commitment to preserve family unity.
A stepchild has permission to come to the United States with the natural parent who will marry or is married to a U.S. citizen or lawful permanent resident (LPR). The rules, however, make distinctions as to who qualifies as a stepchild of a U.S. citizen or LPR.
This applies only if the marriage of the natural parent and the U.S. petitioner occurs before the prospective stepchild turns 18. If the petitioner is a U.S. citizen, the stepchild is an immediate relative just like any other child (biological, legitimate, illegitimate or adopted) with no waiting time for a visa to become available.
If the stepparent is a U.S. LPR, the general rule for “spouses and minor children of LPRs” will apply — i.e. the wait will be approximately two years before the visa becomes available. If the stepchild is already in the U.S. and the petitioner is a U.S. citizen, then concurrent filing of the petition and green card application is an easy option.
In the past, as this information was shared like wildfire in social media, the choice of bringing the “stepchild to be” (legitimate or illegitimate) to the U. S. as a derivative of a fiancee visa parent (K1), had been popular. It had its pros and cons as usual, considering the difficulty of interaction among family members coming from different cultures.
Nevertheless, at times, it is the best option to take when issues of “aging out”, possible long separation between parent and child, or the costs of processing visas, are considered.
The fiancée visa is available only for U.S. citizens. The minor child (under age 21) can immigrate with the parent-fiancee immediately as soon as the petition is approved and the visas are issued. If the child is going to be 21 years old soon, the fiancée visa option is the best route because as long as the child enters the U.S. before age 21 and the natural parent later marries, the stepparent can petition the child and the green card can be applied for concurrently.
It does not matter that the marriage happened when the child already turned 18 (an exception to the basic rule above-stated). When the stepchild turns 18 before the natural parent marries the U.S. petitioner-LPR, no stepchild relationship is established. The only option is for the natural parent to file a petition soon after obtaining a green card (LPR). But having been petitioned by a LPR parent, the wait will be approximately two years.
During the waiting period, it is possible that the child would turn 21 years old, and so the waiting period stretches to seven years or more.
If the child is not yet 18 years old, the natural parent and the stepparent, once married, have other options. The U.S. citizen-stepparent can petition for both the natural parent (as a spouse) and the stepchild individually and separately, and both can come to the U.S. together.
If spending more for two or three immigrants becomes an issue, the stepchild/stepchildren can be later petitioned with no waiting period as long as they are below 21 years old at the time of filing of the petition.
For a U.S. LPR, the stepchild becomes a derivative and can join the alien parent in the U.S. once the visa becomes available in two years.
Significantly, time is of the essence in deciding which option to take. Unlike other children (biological, born in or out of wedlock, adopted), the stepchild relationship terminates when the marriage of the natural parent and U.S. citizen stepparent is dissolved (with few exceptions).
Take divorce as an example. When this happens, even if the stepparent petition has been approved and the visa is being processed on the consular level, it would become ineffective and unenforceable. The unquantifiable adverse emotional and psychological effects of a parent-child separation could linger for years.
We are familiar with stories of grown children having more affection for their immediate relatives whom they left behind in the Philippines compared to their very welcoming American parents.
As a parent, do you exercise Solomonic wisdom or gamble with your options?