Can the mistress’ child be included?

Dear Attorney Gurfinkel:

In 2002, I was petitioned by my US citizen parent as a married child (category F-3). The priority date is now current, and my husband and I are submitting all our forms, fees and paperwork. However, to my shock, I found out my husband cheated on me and had a child with another woman about eight years ago.

Although I’m still very angry at my husband, I have forgiven him. I also cannot blame the child, and I am wondering if we could bring the child along under my petition.

Very truly yours,

HC

Dear HC:

Surprisingly, the answer is yes; the child could be added to your petition as your “stepchild.” No need to adopt. The Immigration and Nationality Act (INA) defines who is considered a “child,” which includes biological children, children born in wedlock, children born out of wedlock, adopted children and stepchildren. The definition of a “stepchild” is an unmarried person under 21 years of age, whether legitimate or not, as long as the child was under 18 when the step-relationship was created. In fact, the Foreign Affairs Manual (FAM) deals with precisely your situation:

“A stepparent/stepchild relationship can also be established for children who were born subsequent to the marriage between the natural parent and the stepparent.  For example, a child who is born due to an out of wedlock relationship between a married man and another woman would qualify as the stepchild of the married man’s wife, since the child was under 18 when the marriage between the natural parent and the stepparent occurred.”

In your situation, a child was born because of a relationship between your husband, a “married man,” and another woman. Since you were married to your husband at the time the child was born, obviously the step relationship occurred before that child’s 18th birthday, and the child is still under 21 years of age. In that case, according to the FAM, “The only requirement is that the child be under the age of 18 at the time the marriage creating the status of stepchild occurred.”

If you want to add or include that child in your petition, I would recommend that you consult with an attorney who can take steps to submit the appropriate forms and paperwork so that when your husband and you go for your interview, that child will be included.

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