Dear Atty. Gurfinkel:
My husband and I have been married since 1995. We entered the US as visitors in 1996, overstayed and are now out of status. Unfortunately, my husband strayed and cheated on me. The other woman got pregnant and gave birth. That US citizen child is now 23 years old.
I have forgiven my husband, but we are both out of status. Is there any way that child could petition us?
Very truly yours,
KG
Dear KG:
The answer is yes. A child born out of an adulterous relationship could still qualify as a “step child” if the couple was married before the child’s 18th birthday. It appears in your case, you were married to your husband at the time his out-of-wedlock child was born. Therefore, even if the child is born out of wedlock, the child could still qualify as your stepchild. Assuming everyone agrees, the child could petition both your husband (as his father) AND YOU (as his stepmother.) The fact that you entered as visitors would enable you to adjust status in the US. If the child is not earning enough for the affidavit of support, you could get a co-sponsor.
In fact, I recently had a consultation involving a situation just like yours, and when the wife found out the husband’s out-of-wedlock child could petition her, her anger turned to joy and she exclaimed, “Thank you for cheating.”
I know sometimes there are unusual family relationships, and it might seem strange that a mistress’ child could petition the wife. If you have a situation similar to this, you may want to consult with an attorney who can evaluate your case and determine if your stepchild can petition you for a green card.