Can a permanent resident petition for a stepchild?

In this week's Consulta Migratoria® column I answer a question from an undocumented reader who wants to know how she can help her minor child who is in deportation proceedings.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

I am Honduran and undocumented, but I am married to a permanent resident of the United States. Nine months ago my minor son, from a previous relationship, entered the country illegally and was caught by immigration. The government released my son and I am taking him to immigration court. My son's biological father became a permanent resident two years ago. Who should I petition for my son so he can get his papers faster? -Vanessa A.

Vanessa, I know that often desperation or an emergency situation causes people to choose to leave their countries or send for their children to enter the United States illegally. But your son should never have come illegally, as he had a legal way to enter the country. Had it been an emergency, an alternative could have been sought.

Your son risked his life and spent money on an unnecessary and dangerous trip. The child was lucky to arrive safely in the U.S., but the risks, being detained by immigration, and all the legal complications he now faces could have been avoided if you had consulted with an immigration attorney sooner.

The good thing about this case is that your child has two possible avenues to be legally petitioned for. Since both his biological father and stepfather are permanent residents, either of them could file a family petition on your child's behalf if they meet the necessary requirements.

Your husband must meet several requirements to petition, including showing that you are married and that your child was under 18 when you married. Your husband does not have to adopt his stepchild to file.

Your child's biological father can also apply if he meets the necessary requirements, including proving the relationship through a birth certificate.

Before you begin immigration proceedings, you should hire an immigration attorney to defend your child in immigration court. The attorney should carefully evaluate your child's case to determine his or her immigration options.

In your question, you have not given me more details about the circumstances, nor specifics of when you got married, details of how the biological father obtained residency, and other information to better guide you.

For example, it must be determined whether your child can obtain permanent residency derivatively through his or her biological parent. This means that, under certain circumstances, unmarried children under the age of 21 of permanent residents obtain derivative permanent residence when their parents become permanent residents. Derivative permanent residence can be obtained either inside or outside the U.S.

If your child cannot obtain permanent residence by derivative, it will be necessary to determine who is the best person to file a family petition on your child's behalf - your spouse or the biological parent.

An important requirement in the process is that the person filing a family petition must demonstrate that he or she can financially support the petitioner. In the case of your child, the financial situation of your spouse and the biological father will have to be evaluated to determine who is in the best financial situation to initiate the petition. Ideally, try to avoid involving a financial guarantor.

With respect to application processing, family petitions of permanent residents for their unmarried children or stepchildren under the age of 21 are assigned to the same F-2A family category. This means that there is no time difference in the availability of an immigrant visa.

But there are other factors that must be evaluated in order to make a final decision. I recommend that you go to an immigration lawyer as soon as possible so that he or she can advise you on the best way to obtain permanent residency for your child.

For more information and immigration tips, read my blog inmigracionhoy.com.

Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of The Green Card: How to Obtain Permanent Residency in the United States. He is a former President of the Hispanic National Bar Association and current President of the Westlake South Neighborhood Council of Los Angeles. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).

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