Prior Mother’s Sham Marriage Does Not Bar Stepchild Petition

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When a US citizen petitions his spouse for a green card, he may also file a petition for his spouse’s child if the marriage creating the stepchild-parent relationship took place before the child’s 18th birthday. As immediate relatives of the US citizen, separate petitions must be filed for the spouse and stepchild.

 

Under immigration laws, a “child” is defined as an unmarried person under twenty-one years of age and includes a stepchild who was under 18 years at the time of the marriage creating the stepchild relationship.

To benefit from the status as stepchild, 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 I-130 petition for the spouse is denied, will this mean that the petition for the stepchild will also be denied?

In a recent case decided by the Board of Immigration Appeals (BIA), it was ruled that although the petition for a spouse is denied under Section 204(c), this does not prevent the approval of the petition filed on behalf of the spouse’s child as a stepchild. Section 204(c) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a US citizen or lawful permanent resident and the marriage was found to have been entered for the purpose of evading immigration laws.

In that case, the US citizen married the beneficiary before her child’s 18th birthday. The US citizen filed an I-130 petition for his spouse and her child as his stepchild. The petition for the spouse was denied by the Citizenship and Immigration Services because it found that the beneficiary had a prior marriage with another US citizen and the marriage was a sham marriage. Thus, the petition of her current spouse was denied under Section 204(c).

The petition for the stepchild was also denied. According to the USCIS, since the petition for the spouse was denied, the petition for the stepchild was no longer valid.

The BIA disagreed, saying that Section 204(c) does not apply to the stepchild. It only applies to the beneficiary who was accorded the status of spouse based on marriage found to have been entered into for purposes of evading immigration law. It said that the stepchild was not a party to the previous marriage of the mother and his relationship to the petitioning stepfather was not related to the prior fraudulent marriage.

The denial of the petition for the spouse does not invalidate the stepchild-parent relationship and does not bar the petition filed on behalf of the stepchild. However, the BIA stressed that the marriage between the child’s natural parent and step-parent has to be valid. A sham marriage cannot create a valid stepchild relationship. The BIA therefore sustained the appeal and remanded the case to the USCIS to further consider the merits of the visa petition.

 

(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.