Recently, the Board of Immigration Appeals (BIA) ruled that a child could receive a green card through a step parent’s petition, even if the child’s natural parent is not eligible (because the child’s parent had previously entered into a fixed marriage). This is great news for people who have children (from previous marriages\relationships) and later married US citizens while their children are under 18 years of age, because even though the parent may not be eligible for a green card, their minor children could still be petitioned.
In that particular case, a US citizen married the child’s mother before the child’s 18th birthday (thus creating a stepchild relationship.) The American then filed petitions on behalf of of the child’s mother (as his wife), and the child, (as a stepchild).
However, the mother had a prior marriage, to a different American citizen, which USCIS concluded was “fixed”. (Under Section 204(c) of the Immigration and Nationality Act, if a person has ever been found to have entered into a fixed marriage, that person is “blacklisted for life,” and no future petition can be approved on his or her behalf.) Accordingly, the USCIS denied the spousal petition, and also denied the child’s petition because “the stepparent relationship to the beneficiary was no longer valid.” In other words, because the petition for the child’s mother was denied, USCIS also denied the child’s petition.
The BIA ruled that the plain language of section 204(c) “applies only to an alien who sought to be accorded, or was accorded, status as a “spouse” based on a marriage found to have been entered into for the purpose of evading the immigration law: “We therefore conclude that section 204(c) does not apply to the beneficiary and does not bar the approval of a visa petition filed on his behalf by the petitioner to accord him status as a stepchild.” The fixed marriage ban, therefore, does not apply to anyone other than the alien spouse who entered into the fixed marriage, and should not apply to step children.
If you married a US citizen before your child’s 18th birthday, but for one reason or another, you are not eligible to be petitioned (i.e. because of prior finding of a fixed marriage, criminal conviction, deportation order, etc.), your child may still be petitioned by your US citizen spouse, as a stepchild. However it is important to note that the marriage to the petitioner\stepfather must be “real” and “valid.” In the above case, the mother’s previous marriage was fixed, but this second marriage to the American-petitioner was for love and in good faith.
If your situation is similar to this case, you may want to seek the advice of an attorney, who can evaluate your circumstances, and even if you cannot safely be petitioned, maybe there is hope for your child, while you’re still married to, and in love with, your American citizen spouse.
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Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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