Can Adopted Stepchild be Classified as Stepchild for Immigration Purposes?

[Ben Dover 6]

Hello. I am a US citizen who has been living overseas basically for the last 12 years. However, I now have a good job opportunity, so I might be moving back to the US in January.

 

I recently finalized a local adoption of my wife's son in May, and I would like to start the process of bringing my family over to be with me as soon as possible. 

 

Given that the I-130 process requires two years of legal and physical custody for adopted kids before starting the immigration process, and we are only 3 months into the legal custody part, can my son still be classified as a stepchild for immigration purposes so that we don't have to wait two years or is he simply viewed as my child by USCIS once the adoption is complete?

 

Thanks!

[Crazy Cat 41,985]

I don't have much knowledge of this area, but I would like to ask a question.  How long has your wife has physical custody of the child?  I'm not sure the 2 year rule is even applicable.  

Edited August 8, 2023 by Crazy Cat

[Mike E 11,741]

3 hours ago, Ben Dover said:

Given that the I-130 process requires two years of legal and physical custody for adopted kids before starting the immigration process, and we are only 3 months into the legal custody part, can my son still be classified as a stepchild for immigration purposes so that we don't have to wait two years or is he simply viewed as my child by USCIS once the adoption is complete

This is fine provided your son was under age 18 when you  married his mother. The FAM specifically addresses this issue:

 

https://fam.state.gov/FAM/09FAM/09FAM050203.html

f.  (U) Adoptive Stepchildren (IR2 Adopted Child):  

(1)  (U) A stepparent is not required to adopt their stepchild for a Form I-130 or Form I-730 to be approved.  If the parent and stepparent married before the child's 18th birthday, the stepparent/stepchild relationship can be a basis for approving a Form I-130 or Form I-730. 
 

The above goes on to say:
 

However, the child must have been adopted by the stepparent and meet the age, legal custody, and joint residence requirements of INA 101(b)(1)(E) and the requirements in 9 FAM 502.3-2(b) before the individual can be the adopting stepparent's "child" for purposes of naturalization under INA 320 or INA 322.

 

So if by the time you get to NVC processing you have clocked 2 years of physical custody, your son will automatically be a U.S. citizen provided he is under 18 when he enters on his IR-2 visa. So you:

* file I-864W for him

* not pay the immigrant fee to get him a green card provided you are willing and able to file for his U.S. passports and certificate of citizenship.

 

If you will clock 2 years of physical custody within a year of him entering the U.S., you:

* file I-864 for him

* not pay the immigrant fee to get him a green card provided you are willing and able to file for his U.S. passports and certificate of citizenship.

 

If you will clock 2 years of physical custody  a year or more after him entering the U.S., you:

* file I-864 for him

*  pay the immigrant fee to get him a green card. Hopefully after 2 years of physical custody,  you are willing and able to file for his U.S. passports and certificate of citizenship. If not, then for the sake of your son, please do not bring him to the U.S., condemned to live his life in legal limbo until after he reaches age 18. Some of these people are destitute now as adults, because they cannot get papers.
 

For how many years have your wife and you been married?

 

 

 

[Ben Dover 6]

1 hour ago, Crazy Cat said:

I don't have much knowledge of this area, but I would like to ask a question.  How long has your wife has physical custody of the child?  I'm not sure the 2 year rule is even applicable.  

My wife is the biological parent and has had physical custody his entire life (11 years).

[Crazy Cat 41,985]

19 minutes ago, Ben Dover said:

My wife is the biological parent and has had physical custody his entire life (11 years).

Seems to me you're in excellent shape to just file an I-130 for each of them.  

Edited August 8, 2023 by Crazy Cat

[Ben Dover 6]

1 hour ago, Mike E said:

This is fine provided your son was under age 18 when you  married his mother. The FAM specifically addresses this issue:

 

https://fam.state.gov/FAM/09FAM/09FAM050203.html

f.  (U) Adoptive Stepchildren (IR2 Adopted Child):  

(1)  (U) A stepparent is not required to adopt their stepchild for a Form I-130 or Form I-730 to be approved.  If the parent and stepparent married before the child's 18th birthday, the stepparent/stepchild relationship can be a basis for approving a Form I-130 or Form I-730. 
 

The above goes on to say:
 

However, the child must have been adopted by the stepparent and meet the age, legal custody, and joint residence requirements of INA 101(b)(1)(E) and the requirements in 9 FAM 502.3-2(b) before the individual can be the adopting stepparent's "child" for purposes of naturalization under INA 320 or INA 322.

 

So if by the time you get to NVC processing you have clocked 2 years of physical custody, your son will automatically be a U.S. citizen provided he is under 18 when he enters on his IR-2 visa. So you:

* file I-864W for him

* not pay the immigrant fee to get him a green card provided you are willing and able to file for his U.S. passports and certificate of citizenship.

 

If you will clock 2 years of physical custody within a year of him entering the U.S., you:

* file I-864 for him

* not pay the immigrant fee to get him a green card provided you are willing and able to file for his U.S. passports and certificate of citizenship.

 

If you will clock 2 years of physical custody  a year or more after him entering the U.S., you:

* file I-864 for him

*  pay the immigrant fee to get him a green card. Hopefully after 2 years of physical custody,  you are willing and able to file for his U.S. passports and certificate of citizenship. If not, then for the sake of your son, please do not bring him to the U.S., condemned to live his life in legal limbo until after he reaches age 18. Some of these people are destitute now as adults, because they cannot get papers.
 

For how many years have your wife and you been married?

 

 

 

Thanks for this detailed response and the link. It perfectly addresses everything I needed to know.

We've been married for over 5 years, and just to clarify, we've had a joint residence for more than the required 2 years, so I believe we've met the physical custody requirement. It's mainly the legal custody requirement I'm concerned about since the adoption was only finalized 3 months ago. 

[Boiler 45,767]

Just wondering if this is a DCF situation, if you can manage that it would be much quicker.

[Redro 4,611]

IIRC Op is currently in Nigeria. I’m not sure they offer DCF (I know they weren’t accepting expedites recently). So, first thing would be to see if DCF is possible and if not plan on moving interview to your spouse’s home country after I130 is approved. As I believe your spouse probably doesn’t want to stay without you in Nigeria for 2+ years. 

[Boiler 45,767]

7 minutes ago, Redro said:

IIRC Op is currently in Nigeria. I’m not sure they offer DCF (I know they weren’t accepting expedites recently). So, first thing would be to see if DCF is possible and if not plan on moving interview to your spouse’s home country after I130 is approved. As I believe your spouse probably doesn’t want to stay without you in Nigeria for 2+ years. 

Should have checked, there is also mention of B2 interviews in January. Not sure if they are connected.

[Mike E 11,741]

43 minutes ago, Ben Dover said:

We've been married for over 5 years

Good. This means no I-751 for your wife, and you will not have to unnecessarily entangle your son in her I-751. 

43 minutes ago, Ben Dover said:

and just to clarify, we've had a joint residence for more than the required 2 years, so I believe we've met the physical custody requirement.

yes, I agree.

43 minutes ago, Ben Dover said:

 

It's mainly the legal custody requirement I'm concerned about since the adoption was only finalized 3 months ago. 

Yes. By the time your son enters the U.S. with an IR-2 visa, the legal custody requirement will be met, and he will be a U.S. citizen, 3 years ahead of mom. 

[Ben Dover 6]

30 minutes ago, Redro said:

IIRC Op is currently in Nigeria. I’m not sure they offer DCF (I know they weren’t accepting expedites recently). So, first thing would be to see if DCF is possible and if not plan on moving interview to your spouse’s home country after I130 is approved. As I believe your spouse probably doesn’t want to stay without you in Nigeria for 2+ years. 

Yeah, she definitely would be heading home while they process the paperwork. Totally forgot about the DCF option but I'll see if it's available. Haven't actually accepted the offer yet. I just want to know what I'd be getting myself into as far as immigration before making a decision. 

[Ben Dover 6]

26 minutes ago, Boiler said:

Should have checked, there is also mention of B2 interviews in January. Not sure if they are connected.

Totally unrelated. She applied for a tourist visa about 3 years ago while we had no plans of relocating but due to the long wait in Lagos, the appointment date is just approaching. 

[Dashinka 24,654]

3 minutes ago, Ben Dover said:

Yeah, she definitely would be heading home while they process the paperwork. Totally forgot about the DCF option but I'll see if it's available. Haven't actually accepted the offer yet. I just want to know what I'd be getting myself into as far as immigration before making a decision. 

The consulate may or may not answer a simple inquiry about DCF, YMMV.  Here is a thread about DCF under exceptional circumstances that helps a lot.

 

Good Luck!

 

 

[Boiler 45,767]

You never know but generally they are there to process cases not provide advice.