Immigration Corner | How will this move affect my daughter?

Dear Mrs Walker-Huntington,

My husband, who is a green card holder, has filed for me and my two daughters, one of whom is his biological child. I received an email from the National Visa Center stating that we had been documentarily approved since May 4, 2022. However, we are waiting on an available date for an interview.

My concern is that my older daughter, whose dad is also residing in the US, agreed to accommodate her for a while as she was having behavioural issues, which had become unbearable for me to deal with on my own. She has since been attending a high school in Queens, New York, and has exceeded her six months’ visitor stay. I want to know how that will affect her given that she is being filed for and the location for the interview is in Kingston, Jamaica.

KC

Dear KC,

Having your daughter stay in the US and become out of status can be detrimental if she is over 18 years old.

While in America, all children are eligible to attend school up to high school, regardless of their immigration status. It is a precarious position to place the children. Unless there is an immediate and clear path to legalisation, children run the risk of becoming undocumented adults. which can negatively affect their futures.

I don’t know how your filing was made and whether your husband filed for each of you individually or whether he filed for you and the children as derivatives. A person accumulates unlawful presence once they are 18 years old. If a person who has accrued more than six months of unlawful presence leaves the US (e.g., to return to Jamaica for a visa interview), they trigger a mandatory three-year bar to returning to the US. If they leave after a year of unlawful presence, the mandatory bar is 10 years. Both bars can be overcome with the grant of a waiver.

If your daughter will not be 18 years old when the visa interview is scheduled, she can leave and return without issue as she will be considered a child and incapable of making the decision to remain in America without status. However, if she is over 18 and depending on how long she is out of status – she could be barred from returning without a waiver.

This is a complicated situation, and you should consult with an immigration lawyer regarding your specific filing, the age of your child, the date of the filing, and how your husband filed. All of these factors will determine your daughter’s ability to legally remain in and or return to the United States.

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