Immigration Corner | I can’t leave my six-year-old behind

Dear Mrs Walker-Huntington,

My adult son, who is a US citizen, filed for me and his younger brother, who is six years old. My filing came through, but not my six-year-old. Can I write to the embassy explaining that I can’t leave my child behind, because there’s no one to leave him with? I am a single mother and I have no idea where the child’s father is.

CS

Dear CS,

This is a recurrent problem in immigration and writing to the US Embassy in Kingston or any arm of the US government will not solve the issue. It is a problem that people around the world face, and it needs US government action to resolve.

There is a category for adult, US citizen siblings filing for their brother/sister to migrate to the United States and as such, the sibling cannot become a derivative beneficiary of a parent’s petition – as in your case. Many people believe that listing a family member on the primary beneficiary’s petition is the same as filing a petition for that person – it is not in all cases. A petition must list all family members as requested, but it is not the equivalent of filing for a child as a derivative beneficiary when the petitioner is that child’s adult, US citizen sibling.

If your parent or your sibling had filed for you, your minor child would be a derivative beneficiary of that petition, but not when it is your son who filed the petition for alien relative.

The legal option you have is to make your entry into the United States as an immigrant and file for a Re-Entry Permit. If granted, the Re-Entry Permit would allow you to remain outside of the United States for its duration (up to two years). Keep in mind that green card holders are required to live in the United States, and if a green card holder remains living outside the US, they run the risk of losing their US residency. The option for green card holders who cannot reside in the United States is the Re-Entry Permit.

Once you are a permanent resident, you should also immediately file a petition for your minor child, to get that ball rolling. When your child’s petition gets to stage two – you can indicate that you will migrate to America once the child’s green card is approved at the US Embassy in Kingston.

The processing time for petitions in that F2A category (green card holder filing for minor child) is current, and pre-pandemic would have taken about a year. However, with the backlogs created by the pandemic, the wait is now longer and undetermined.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com