Sometimes, it may be the case that your spouse has children from a prior relationship. If you’d like to bring your stepchildren into the U.S. along with your spouse, special visa considerations are necessary. The process begins with the petitioner (the U.S. citizen) filing to bring their spouse (the principal beneficiary) lawfully into the US. Immigration laws allow for some qualifying family members of the principal beneficiary to receive immigration benefits as derivative beneficiaries. Your stepchildren, the children from your spouse’s prior marriage, may qualify as derivative beneficiaries if they meet the following criteria: (1) the child must be unmarried and under the age of 21, and (2) the marriage between the U.S. petitioner and the foreign spouse must have occurred before the said child turned 18 years old. Primary evidence for a stepchild includes the child’s birth certificate and marriage certificate showing the petitioner married the child’s natural parent before the child turned 18 years old.
It is important to note that the process can be different depending on whether the petitioner is a U.S. citizen or a lawful permanent resident. When a U.S. citizen petitions for a spouse as an immediate relative, the spouse’s children generally cannot be included as derivative beneficiaries of that petition, so a separate I-130 may be required for each qualifying stepchild. By contrast, when the petitioner is a lawful permanent resident, the spouse generally falls within a family-preference category, and certain qualifying children may be able to immigrate as derivative beneficiaries of the spouse’s petition. Visa availability and other eligibility requirements may also affect when the spouse and children can proceed. For this reason, it is important to determine the appropriate petition and beneficiary category before filing.
What if the stepchild and the spouse reside abroad?
If your spouse and stepchildren live outside of the U.S., the first step is for the petitioner to file the I-130 Petition for Alien Relative form on behalf of the foreign spouse (if the stepchild qualifies as a derivative beneficiary, a separate I-130 form is not needed). Once USCIS approves the I-130 form, the case will get transferred to the National Visa Center for consular processing. During this process, each derivative (stepchild) beneficiary will separately file a DS-260 form, which is the application for an immigrant visa to allow each beneficiary to be admitted to the U.S. as a legal permanent resident.
What if the stepchild resides in the U.S.?
If the stepchild lives inside the U.S., the first step is the same. The petitioner must first file the I-130 form, with the stepchildren as the derivative beneficiary. Once approved by USCIS, the stepchild will then apply to become a lawful permanent resident by filing form I-485.
Giselle M. Rodriguez is a Boston immigration lawyer who helps clients with marriage visas, fiance(e) visas (K-1 visas), and other family-based immigration options. Giselle is bilingual, speaking English & Spanish. Contact Giselle today to discuss your case.
Note: the information on this page is for educational purposes only, and does not constitute legal advice or an attorney-client relationship.