AQUINO & LOEW

There are so many factors that individuals have to take into consideration when getting married--the location, coordinating family attendance, the perfect dress, the scrumptious cake, etc.  For those marrying a foreigner, however, the immigration implications add yet another layer of planning to ensure that all goes smoothly.  This is especially heightened when the foreign fiancée already has children that would surely wish to join their parent in coming to the United States.

The United States Citizenship and Immigration Service (CIS) recently issued a memorandum to its officers reminding them of a “loop hole” in the immigration laws that make the fiancée visa more advantageous than a marriage-based immigrant visa when certain step-children are involved.  Essentially, if the foreigner fiancée has children between the ages of 18-20, it is more advantageous to proceed with a fiancée visa rather than for the parties to marry and obtain an immigrant visa based on the marriage. 

This scenario is due to the definition of “step-child” and “step-parent” in the immigration laws.  Under the immigration laws, a step-parent/step-child relationship is established only when the marriage between the step-parent and the natural parent takes place before the step-child’s 18^th birthday.  Thus, for children who are under the age of 18 at the time of marriage, either the fiancée visa or the immigrant visa based on marriage is available since the United States citizen step-parent can directly petition without any delay the step-child for either the K-2 dependent fiancée visa or the marriage-based immigrant visa. 

Since children over 18 are not legally considered step-children, the US citizen spouse cannot file an immigrant visa petition for the child.  Instead, only the natural parent can proceed with petitioning the natural children for an immigrant visa once entry into the US has been accomplished.  That petition, however, would only place the children on a waiting list, which presently from can be as long as 11 years.

The immigration laws, however, provide a solution to this dilemma for children who are over the age of 18 and under 21.  As long as the parties do not marry, but instead they obtain a fiancée visa, the children between ages 18-20 may obtain a K-2 dependent fiancée visa to enter the United States along with their natural parent.  So long as the parties get married within the required 90 days of the fiancée’s entry into the United States, the children ages 18-20 may thereafter immediately obtain their immigrant visa based on the marriage.  Even though they are not legally considered step-children of the US citizen spouse, the provision in the laws specifically allow for K-2 dependent fiancée visa holders to adjust status despite being over 18 years old at the time of marriage.

The CIS issued the recent memo reminding its officers of this little “loop hole” in the law to ensure that applications are adjudicated properly.  It is equally vital that individuals intending to marry a foreign citizen be reminded of this legal provision to ensure that they avail of it whenever possible so that family’s can be kept together and not harshly forced to separate.  It is therefore imperative that individuals seek well-informed legal counsel intricately familiar with the various provisions in the immigration laws to ensure that justice is served.