Do you have conditional resident children clients who do not have conditional resident parents? You may, if you have a stepchild of a U.S. citizen who immigrated without the parent who married the citizen. Most frequently this will happen when there is a non-waivable inadmissibility ground that affects the ability of the alien spouse to immigrate, but not his or her child.
What status does that stepchild have, if the child immigrates within two years of the marriage? A January 1990 INS policy memo limits the conditional residency child classification to situations in which there is a parent who qualifies as an alien spouse. After CLINIC heard from several affiliates about cases where a stepchild has been granted conditional residency status even when the stepchild's parent is not immigrating, we asked USCIS to clarify if it is still following the 1990 guidance. The USCIS answer to CLINIC's question, pasted below, confirms that the 1990 guidance still represents current policy. This same Q & A is included in the minutes from the December 2011 USCIS National Stakeholder Engagement, which you can find on the USCIS website or by clicking on this link .
If you have child clients whom you believe have erroneously been classified as conditional residents, please contact the CLINIC hotline or me at firstname.lastname@example.org ).
Q: A January 1990 INS policy memo states that an alien qualifies as an alien son or daughter only if his or her parent qualifies as an alien spouse as defined in 216(g). An alien spouse, in turn, is defined as an alien who obtains his or her status based on a marriage that is less than two years old when the status is granted. Stakeholders are seeing cases where a stepchild is immigrating but the stepchild's parent is not, but the child is nevertheless granted conditional resident status. This is in conflict with the 1990 memo that limits the conditional resident child classification to situations in which there is a parent who qualifies as an alien spouse. Please clarify if USCIS is still following the 1990 policy guidance.
A: Yes, USCIS is still following the 1990 policy guidance. Per Legal Opinion, Cook, General Counsel (Jan. 12, 1990), an alien qualifies as an “alien son or daughter” only if his or her alien parent qualifies as an “alien spouse,” as defined in INA Section 216(g)(1). In other words, if the alien parent did not obtain permanent residence through marriage, the child is not subject to the conditions in INA § 216. If the alien parent of a child has never obtained permanent residence, the child should granted resident status without conditions.