Can I Petition for My Stepchildren Over 21?
Yes! A U.S. citizen or LPR stepparent may be able to petition for their stepchild to immigrate to the United States if the stepparent married the child’s birth parent before the child’s 18th birthday. Adoption is not required.
Family-based green card options are divided primarily into two categories:
Immediate relatives:
- Spouse of a U.S. citizen;
- Unmarried child under the age of 21 of a U.S. citizen; and
- Parent of a U.S. citizen who is at least 21 years old.
Preference relatives:
- Unmarried sons and daughters (21 years of age and older) of U.S. citizens;
- Spouses and children (unmarried and under 21 years of age) of lawful permanent residents;
- Unmarried sons and daughters (21 years of age and older) of lawful permanent residents;
- Married sons and daughters of U.S. citizens; and
- Brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older).
Why does the immediate relative category list “child” when the preference relative categories list “sons and daughters”? Are they the same?
According to the USCIS website (here):
For immigration purposes, a “child” is an unmarried person under 21 years of age. A “son” or “daughter” is a person who is married or is 21 years of age or older.
The United States Code, which contains the Immigration and Nationality Act (“INA”) in Title 8, defines “child” to include “a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.”
Therefore, a U.S. citizen may petition for their unmarried stepchild (21 years of age and older), so long as the marriage creating the status of the relationship occurred before the child’s 18th birthday.
A natural parent who is a LPR may also petition for their unmarried sons and daughters (21 years of age and older).
Families should refer to the monthly U.S. Department of State Visa Bulletin (here) to determine which preference category has a shorter backlog:
- First preference (F1) – unmarried sons and daughters (21 years of age and older) of U.S. citizens; or
- Second preference (F2B) – unmarried sons and daughters (21 years of age and older) of lawful permanent residents.
Interesting Case: In Coniglio v. Garland, 556 F.Supp.3d 187, 203 (E.D.N.Y. 2021) (here), the term “had not reached the age of eighteen years” was found to be ambiguous and where parents were married on child’s 18th birthday, child was eligible for classification as a child.
- Birth – 4:15PM on October 7, 1996 in Chengdu, China
- Marriage – 11:25AM on October 7, 1996 in Brooklyn, New York (11:25PM, China Standard Time)
- I-130 – Filed on March 20, 2015 seeking classification as “immediate relative” when child was 18 years, 5 months.
Immigration Lawyer for I-130
If you have questions about filing an I-130 immigrant visa petition for stepchildren over 21, contact immigration lawyer for I-130, Dayna Lally, at [email protected]. Consultation fees may apply.
Disclaimer: This blog article is provided by Lally Immigration Services, LLC for informational and marketing purposes. This article does not constitute legal advice, nor does it establish an attorney-client relationship. No reader should act, or refrain from acting, on the basis of any information presented in this article, or elsewhere on this website, without seeking the advice of appropriate legal counsel, or other professional counsel, licensed in the relevant jurisdiction. Lally Immigration Services, LLC expressly disclaims any and all liability with respect to any actions taken, or not taken, based on any content of this article or website. Prior results do not guarantee a similar outcome.
Last Reviewed/Updated: 01/23/2024
