Children’s Age limits with Marriage and Fiance Visas
Often in my immigration practice, I am talking to a client who has a fiance or spouse in another country and the topic turns children’s age limits for marriage and fiance visas. Many times, this is the primary concern for the overseas fiance or spouse. Unfortunately, the U.S. Immigration Laws in the area are about as clear as mud.
For the Marriage Visa, the child or stepchild must fit the USCIS definition of a “Child” in order to qualify for a Green Card along with their mother or father after the marriage has taken place. Below is the USCIS definition of “Child”
- A “child” as an unmarried person under the age of 21 (a minor) who is:A child born to parents who are married to each other (born in wedlock)
- A stepchild if the marriage creating the step relationship took place before the child reached the age of 18
- A child born out-of-wedlock (the parents were not married at the time the child was born). Note: If the father is filing the petition, proof of a bona fide (real and established) relationship with the father must be supplied.
The long and the short of it is that children’s age limits in marriage visa cases, the marriage must take place before the child turns 18 years old. It doesn’t matter if the marriage takes place in the United States or in a foreign country. The U.S. Citizen would need to file a separate application for each stepchild that qualifies.
For the Fiance Visa, children’s age limits is a bit more tricky. U.S. Law allows for a foreign-born fiance to bring his or her children to the United States when the Fiance Visa is approved. Again, look at the definition of a “Child”. So U.S. Law allows the fiance and his or her children in. But what if the couple marries and the fiance’s children are already 18 (but not yet 21)? Can they come to the United States and get a Green Card. According to the USCIS, the children can accompany their parent, but they cannot adjust their status to that of Permanent Resident (Green Card) because they were over 18. I have seen, and worked on, cases where a local USCIS office denied a K2 their Green Card because the marriage did not take place before the K2 was 18 years old.
There was a court case (Matter of Le, 2011) about this, and it was the basis of article I wrote last year. According to Matter of Le, the age of the child is “fixed” at the time the child enters the United States. So, as long as the marriage takes place while the fiance child is under 21, the foreign-born mother or father can adjust her status and add his or her “child” on the application for green card, and even if the child is over 21, then the time.
As I said, this is a tricky situation, and it will confuse many a USCIS officer. Many times, we end up suing the USCIS in Federal Court to request a Federal Judge to mandate that the USCIS award the “child” the benefit that they seek. At that point, the case can get more expensive, and the decision is in the hands of the Federal Judge.
John B. Buda, Esq
Buda Law Group
Buda Law Group offers affordable, marriage and fiance visa services for Chinese – American couples. Contact us today.