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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