Parents’ Divorce Does Not Bar Step-parent Petition

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A U.S. citizen may file an immigrant petition with the United States Citizenship and Immigration Services (USCIS) for his alien parents to immigrate to the U.S.  Parents, just like the spouse and the unmarried children under 21 of a U.S. citizen, are considered immediate relatives and need not wait for an immigrant visa number to become available once the I-130 petition is approved.

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old.

The I-130 petition must be supported by proof of the sponsor's relationship to the beneficiary.  For a legitimate child sponsoring his alien parents for a green card, he must submit his birth certificate showing his name and his parents name.

A child who was born out of wedlock may petition his natural father if the father has or had a bona fide parent-child relationship before the illegitimate child turned 21.

There is a bona fide parent-child relationship, "where the father demonstrates or has demonstrated active concern for the child's support, instruction and general welfare."

A bona fide relationship may be shown by proof of emotional ties such as regular communication through letters; attendance of major events in the life of the child like birthdays, graduations; notarized affidavits of friends, neighbors, school officials and other knowledgeable persons who would attest to the existence of a parent-child relationship between the petitioner and the beneficiary.

The US citizen child may also sponsor his step-parent for a green card. To benefit from the status as step-parent, the U.S. citizen petitioner must not have reached 18 years of age at the time of the marriage creating the stepchild relationship.

To benefit from the stepchild relationship, it has been held that “no qualification beyond a valid marriage creating the step-relationship should be imposed.” A previous ruling that the step-parent should have an “active parental interest” in the child was abandoned. The only requirement therefore is that the marriage between the child’s natural parent and step-parent is valid.

What if the petitioner’s birth parent divorced his step-parent, will this mean that the petition for the step-parent will be denied?

In a recent case, the Board of Immigration Appeals (BIA) set aside the decision of the Field Office Director of the USCIS denying the visa petition filed on behalf of the petitioner’s step-father.

In that case, the petitioner’s mother and stepfather divorced. Since the marriage between the petitioner’s mother and stepfather ended, she had to establish that her relationship with her stepfather continued even after the divorce.

The USCIS Director, however, noted that most of the evidence submitted by the petitioner related to their relationship before the divorce. The Director requested additional evidence demonstrating that her stepfather supported her financially such as money order receipts, canceled checks tax records, school records, among others.

Petitioner submitted statements, photographs, affidavits and greetings which the Director determined as insufficient to meet the burden of proof.

The Petitioner argued on appeal that in cases involving an adult child required evidence should generally come in the form of cards, letter, and family photos.

The BIA pointed out that the Director’s reason for denial was not specifically addressed in the request for evidence. In order to give the petitioner the opportunity to respond to the reason for the denial, the BIA remanded the case to the USCIS to allow the petitioner to submit additional evidence. Such evidence did not have to prove active parenting and continuing financial support but must show that the “parent-child relationship more probably than not continued since the parents’ relationship was terminated.”

 (Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212)695-5281)