Website Q & A - January 13, 2007
Q&A published on Februay 18, 2007 World Journal Weekly
After Marrying my Lawful Permanent Resident Common Law Husband,
Can He Adopt my 19-Year Old Son So That My Son Can Immigrate With
Me?
Tina of Philippines asks:
I have been living with a man for 16 yrs. My son was only 2 years
old then. I have been separated from my husband in 1990.
My common law husband and I didn’t get married for he had
a pending petition by his parents as single son. He finally went
to U.S. on Sept. 2004, and now a Lawful Permanent Resident, and
that was the only time we got separated from each other, and I went
on with my annulment, and finally it was annulled. He came back
and we got married in July 2006, and he is back in U.S. now to file
for petition. I am aware that this petition will take for about
3 to 5 years. My main concern is for my only son, who turned 19
on August 18, 2006. Would he be able to come with me when my husbands
petition for me is granted? We have consulted an Attorney regarding
his adoption, the lawyer said we can still file for a joint petition
for him to adopt my son even if he is already 18 because he has
been a father to him since he was 2 years old, and we can prove
that with so many family pictures that we have since he was a little
child. My husband will be filing for the petition this coming week
and he will write in the 1-130 Form information on wife’s
dependent children, and he will be writing there my son’s
present surname by my 1st husband. Will there be a problem if my
new husband will change my sons surname in the application once
the decree for adoption is granted, which will take us about 6 to
8 months from now. We didn’t do this before because we know
that he should remain single because of his petition. It really
hurts us so much that we are living apart, and he loves my son so
much that he doesn’t want him left behind. Do we need to go
on with the adoption?
Dear reader:
I note that you married in July 2006, that your son turned 19 in
August 2006, and that your common-law husband was not the natural
father. Under these circumstances, your son will unfortunately not
be able to immigrate with you as he is not recognized as the child
of your present husband under any reading of the immigration laws.
To be considered a stepchild, the marriage had to have been celebrated
before your son turned the age of 18. To be adopted for immigration
purposes to the U.S., your son would have had to have been adopted
by the age of 16. As neither of these conditions existed, you will
have to find another way for your son to come to this country. (I
do not believe that you and your husband could logically argue that
the common-law marriage should be recognized as a binding union
since your husband immigrated as a single son and you only recently
obtained your annulment). If your son is still a student when you
or he is ready to immigrate, there is a possibility of his obtaining
a student visa. If he has graduated from college with a four year
degree in a specialty occupation by that time, it may be possible
for a U.S. employer to sponsor him for an H-1B visa. If he has skills
in an occupation which is in short supply in this country, it may
also be possible for an employer to sponsor him for permanent residence
under a labor certification. There may also be other possibilities
that I have not mentioned, but these are the ones that spring to
mind.
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