Jane grew up in Beijing, China. Her father, Dr. Chen, is an outstanding scientist. Unfortunately, her parents divorced when she was 10 years old. A few years ago, Jane’s father came to the US to work as a research scientist in a national lab. He was granted a H-1B visa, and brought Jane with him under a H-4 visa.

Dr. Chen is a very nice and attractive man. Two years later after he came to the US, he met Maria. Maria is an American citizen who loves Chinese culture. Dr. Chen and Maria fell in love. They got married when Jane was 17 years old.

Unlike Snow White and Cinderella, Jane was not poisoned or forced to work as a maid by her stepmother. Instead, Maria and Jane got along very well. Maria loves Jane very much and they share a lot of activities. Jane has taught Maria a lot of things about Chinese culture. Now, Jane is teaching Maria Chinese. They have a very happy family life.

Jane is now 19 years old and she wants to stay in the US for college. Maria decided to file an immigration petition for Jane. Can Maria do so based on current immigration regulations?

Stepmothers are often portrayed as wicked, jealous, and evil. Historically, they either are jealous of their stepchildren or try to marry their stepsons. However, as more and more families today become “blended”, it is very likely that a stepmother and stepchild will want to stay together. According to U.S. immigration law, a stepmother may file an immigration petition (form I-130) for her stepchild if the child is unmarried and under 21, and if the marriage that created the step-relationship took place before the child turned 18 years old. Because Maria married Dr. Chen when Jane was 17 years old and Jane is unmarried, Maria is eligible file the immigration petition for Jane. In addition, immediate family members do not need to be issued a visa number. Jane is only required to wait until the USCIS processes her case. This stepmother story will have a “happily ever after” ending: only both the stepmother and stepchild will live happily ever after. However, Maria needs to file the I-130 on behalf of Jane as soon as possible, as Jane is already 19 years old. If the child reaches his or her 21st birthday before the application is adjudicated, the adjudication process will be significantly delayed.

A stepchild may also file an immigration petition for his/her stepparents. Jessica was born in the United States while her father, a Chinese citizen, was a visiting scholar. However, her parents divorced when she was two years old, and Jessica and her father returned back to Beijing where she has lived for most of her life. Five years ago, when Jessica turned seventeen, her father married Ms. Zhang in Beijing. Recently, Jessica and her parents decided to come back to the United States. Jessica is eligible to file an immigration petition for Ms. Zhang. U.S. immigration law states a stepchild may file a form I-130 (Petition for Alien Relative) on behalf of her stepparents if he or she is over 21 years old, and if the marriage that created the step-relationship took place before he or she was 18 years old. Because Jessica is now 22 years old, and her step-mother married her father when she was 17 years old, Jessica can file the I-130 petition for Ms. Zhang.

In the immigration world, a stepmother is actually considered a closer relationship than an adoptive mother. There are certainly less restrictions. However, an adoptive relationship must meet more requirements: (1) the child must be adopted before his or her 16th birthday; (2) the adoptive parent or parents must have had legal custody of the adopted child for two years upon filing the immigration petition; and (3) the adopted child must have resided with the petitioner for at least two years before filing the immigration petition.

There is a rationale for treat stepchildren on a more favorable standard than adopted children on immigration petitions. It is primarily fraud prevention. Many US citizens, especially naturalized citizens, have relatives with children in foreign countries. They may intend to bring these children to the US. If there are no strict regulations on immigration petitions based on adoptive relationships, many people may take advantage of the system. Although fraudulent activities also happen in marriage-based immigration, it is harder to cheat the USCIS in a marriage relationship than in an adoptive relationship.
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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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*This article is based on the state of the law as of the posting date. It is the responsibility of the reader to verify that the law has not changed by consulting an attorney, although Zhang and Associates will make every effort to ensure that our articles are updated periodically.