If father gets a marriage-based green card, can son and gay spouse immigrate at the same time?

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Question:

I’m a U.S. citizen who’s been living in France for the past ten years, married to a French citizen for the past six. It’s the second marriage for both of us. My husband has a son from his first marriage, who just turned 19. He lives with us and I consider him my stepson. My husband and I are planning to move to the U.S. so that I can be with my elderly parents. The issue is that our son is in his first serious relationship, with another young man, and doesn’t want to come to the U.S. without him. He’s been insisting that if he marries his boyfriend, he can bring him along. When we try to tell him that’s not the way U.S. law works, he tells us we’re being unsupportive. Please clarify this!

Answer:

You are right about the law. Let’s start with the basics: Because your marriage took place before your stepson was 18, he should indeed qualify as your stepson for U.S. immigration purposes. Because he is the child of a U.S. citizen (under age 21), you will presumably have filed an I-130 on his behalf (and a separate one of your husband). That made each of them your immediate relatives and eligible for U.S. immigration just as soon as they can get through the application process.

If your stepson were to enter into a legally recognized marriage, however, he would no longer be your immediate relative. Because France has authorized same-sex marriage, and the marriage will presumably take place there, the U.S. will likely recognize the marriage as legally valid, and thus treat your stepson as a married person for U.S. immigration purposes. (Pre-2013, the U.S. would not have recognized the marriage, and it would not have affected your son’s immigration rights.)

The good news is that your stepson wouldn’t lose eligibility for a U.S. green card altogether, but would be placed into the third preference category of the visa allocation system, for married sons and daughters of U.S. citizens. The bad news is that, as a third preference relative, he would face a wait before he could enter the United States, based on annual limits and demand for other such visas. See the State Department’s Visa Bulletin: It shows that people in the third preference category currently wait at least ten years before a visa becomes available to them.  Your stepson could bring a spouse with him at that time.

Assuming your stepson is interested in going to the U.S. along with you, a better option might be for him to consider having his boyfriend apply for a U.S. visitor visa (good for up to six months at a time) or a student visa.

A final note: The information in this Q&A applies only to people who fit all the criteria described above. If, for example, the stepson had been over 18 at the time of the parents’ marriage, a whole different analysis would apply. The same goes if the U.S. petitioner were a permanent resident, not a citizen. For a complete personal evaluation and assistance, consult a U.S. immigration attorney.

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