For better or for worse, many of the United States’ immigration policies are based on more-traditional family structures. But even a traditional family structure can be messy, with complex relationships and unique situations, and that’s especially true of non-traditional family setups. Less-common family situations are more common than ever, and they often make immigrating to the US more difficult.
Giselle M. Rodriguez is a Boston immigration lawyer in Jamaica Plain who helps clients with the full range of immigration challenges, including family immigration. She is bilingual (English & Spanish), and works with clients throughout Greater Boston and Massachusetts. Contact Giselle today to discuss your case, or read on to learn more.
What are “non-traditional” families, in the context of immigrating to the US?
The concept of “family” can be tricky. Biologically related people can be strangers, and non-biologically-related people can be very close to each other (e.g. in-laws, step parents, adopted children, etc.). It is hard to pin down exactly what makes a family a family, which is why many countries differ in how they define family relations – what’s considered traditional or “accepted” and what’s not.
Here are a few factors that might make a family “non-traditional” – at least according to the United States Citizenship and Immigration Services – in a way that might complicate the immigration process:
- Children born out of wedlock.
- Adoptive relationships
- Children with unclear parentage, particularly unclear paternity.
- Common-law marriages, or marriages that are not legally recognized, even though they may be functionally the same as legal marriages.
- Polygamy: in some countries it’s legal (often common) to be married to more than one person.
- Extended family members’ raising children who are not their biological children. For example, grandparents, aunts, and uncles may raise their children’s or relatives’ children, either instead of or in addition to raising their own children.
- People with “marginalized orientations, gender alignments, and identities” – also known as “MOGAI” – face legal challenges to getting married in some countries. Being legally unmarried can complicate immigration.
Those situations and others can complicate the immigration process. Others are already accounted for in current US immigration law. Below is more detail on some of the more-common less-common family situations.
Married to multiple spouses (polygamy or bigamy)
The N-400 Application for Naturalization asks whether you have ever been married to more than one person at the same time. Even if you were never legally married to multiple spouses, the regulations state that you your citizenship application can be declined if polygamy indicates a lack of “good moral character.“
It’s a hard reality that even you come from a culture or a religion that has practiced polygamy for thousands of years, it creates difficulties if you want to immigrate to the United States. Practicing polygamy may lead USCIS to examine the web of your relationships more closely it might otherwise.
None of that means you are out of luck, though. Even if you have been legally married to more than one person in your home country, you can still apply for naturalization if you did not obtain your permanent resident status through a marriage to two or more people, and if it has been more than 5 years since you were actively practicing bigamy or polygamy.
There are still limitations. One is that you cannot legally sponsor a second or third spouse to come to the United States of America, and you cannot remain married to more than one spouse without jeopardizing your immigration benefits.
Family immigration with children born out of wedlock
Bringing your children from another country is usually straightforward if your child is under the age of 21 and is unmarried.
Nevertheless, if the child is born out-of-wedlock you might need to take extra steps to prove that child is yours. A child is born in-wedlock if “the child’s legal parents are married to one another at the time of birth and at least one of the legal parents has a genetic or gestational relationship with the child.” This also includes children born via Assisted Reproductive Technology (ART). A child whose biological father was different from his or her legal father is in-wedlock if the father acknowledges that child.
Thus the evidence that you will need to help an out-of-wedlock child immigrate to the could include:
- Birth certificate
- DNA test
- Evidence that the child has been legally legitimized
- Blood test
- Affidavit of birth
- Marriage certificate
- Evidence of a bona fide relationship between father and child, such as evidence that you lived with the child, gave the child money, named the child as a beneficiary on your insurance policies, met with the child’s teachers, etc.
- Affidavits attesting to the relationship between you and the child.
Consult with your immigration attorney to get a full list of the specific evidence you should be prepared to provide.
Family immigration for dependent relatives
If you, as a petitioner, file an immigration petition for your sibling, your sibling’s son or daughter (i.e. your nephew or niece) could be listed as dependents under your sibling as long as that child is unmarried and under the age of 21.
In the case of grandchildren, if the petitioner files an immigration petition on behalf of your adult son or daughter who in turn has children, then in some cases the unmarried child under 21 could be admitted as a “derivative beneficiary” under your adult son or daughter.
Family Immigration for same-sex or MOGAI Couples
Gay marriage is legal in all 50 states. That means that gay couples can sponsor their spouses. Those who are unable to legally get married in their spouse’s country of origin or who have not told their spouse’s family that they are married may face additional challenges during the interview process. In addition, because spouses may wait until they get to the United States to pursue a marriage, applying for the K-1 fianceé visa will often become a necessary step in the process. See our marriage-based immigration page for more details.
Family immigration for adoptees
Adopted children of US citizens may become the beneficiaries of The Hague and orphan processes that allow them to petition on behalf of the child. Lawful permanent residents may also bring their adopted children to the United States.
Other requirements exist, depending on which process you are using. Much will also depend on the specifics of your unique family situation.
Don’t try to navigate the US immigration process alone
Families are complicated, but immigration law is even more complicated. Contact the Law Offices of Giselle M. Rodriguez in Boston (Jamaica Plain) to get the help you need to give your family the best chance to stay together here in the United States.