How to emigrate to the USA through a stepchild?

In this week's Consulta Migratoria® column I answer a question from a reader who wants to know if a U.S. citizen can petition for her biological father, stepmother and siblings.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

1st Case related to the consultation

I live in Venezuela with my husband and two minor children. My husband has a 16 year old U.S. son from a previous relationship. Can my U.S. stepson petition for my husband, me and his siblings? Luz B.

Luz, your stepson could ask for you, your husband and his siblings when he turns 21.

U.S. citizens may petition for their parents, spouses, children and siblings. To petition for parents and siblings, the U.S. citizen must be 21 years of age or older.

The citizen must apply for each of his or her eligible family members separately.

Under immigration law, the term "parent" includes biological, adoptive and step-parents.

In the case of stepparents, they must have married the U.S. citizen's biological parent before the U.S. citizen's 18th birthday. There is no need for the stepparent to adopt the U.S. citizen in order to obtain immigration benefits.

Assuming you are legally married, your stepson could file a family petition for each of you with the U.S. Citizenship and Immigration Services (USCIS) when he turns 21. Along with the application, your stepson must include evidence showing his U.S. citizenship and your relationship to each other, among other requirements.

When you apply for your immigrant visas in the future, you will have to demonstrate that you will not be a public charge to the United States and that you have not committed any wrongdoing in the past that would disqualify you from an immigrant visa.

You and your spouse will be able to immigrate to the United States faster because immigrant visas are immediately available for parents of U.S. citizens.

In the case of your children, they will have to wait approximately 13 years to be able to emigrate through the petition that your stepson will file.

2nd Case related to the consultation:

I am a Spanish citizen, I am married to a Spanish citizen and we have two children of 2 and 6 years old. We currently live in Spain. The daughter from my husband's first marriage is an American citizen. She is 23 years old and married to a U.S. citizen. When I married my husband, she was 12 years old. She is going to petition for my husband, in that petition she can petition for me and her two siblings. What is the procedure to follow? -Tatiana C.

Tatiana, since your stepdaughter is a U.S. citizen and over the age of 21, she could petition for all of them. But she would have to file four separate family petitions - one for her father, one for you, and one for each of her siblings.

For family-based petitions to be approved, your stepdaughter must show that she meets all the necessary requirements, including being a U.S. citizen and the relationship between you. In order for her to petition for you as her stepmother, the law says that you and your husband must have been married before your stepdaughter turned 18. Since you say you were married when she was 12, she can petition for you too, as long as you meet all the requirements.

The process for you and your spouse will take approximately 12 months to complete because visas are immediately available for parents of U.S. citizens. But in the case of your children, the process will take several years because they fall into the F-4 family category, siblings of U.S. citizens.

According to the U.S. Department of State Visa Bulletin August 2015.If your children are in the F-4 family category, the government is processing family petitions in the F-4 family category filed before December 1, 2002. In other words, there is a wait of approximately 14 years before a visa becomes available for your children through their sister's petition.

While the process is underway, your children must remain outside the United States unless they have another legal way to live in the country.

Another option for your children to acquire permanent residency faster is that when you or your spouse becomes a permanent resident of the United States, one of you files a family petition for your children. By doing so, your children's case would be placed in the F-2A family category, unmarried children under the age of 21 of permanent residents.

According to the Department of State's August 2015 Visa Bulletin, the government is processing family-based petitions in the F-2A family category filed before December 15, 2013.

That means that if you or your spouse become a resident and then petition for your children, you would only have a wait of about 3 years for a visa to become available for them.

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 La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past president of the Hispanic National Bar Association and current president of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.

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