Immigration Corner | What is going to happen to my child?

Dear Mrs Walker-Huntington,

I am currently in the process of a filing as an additional applicant of my father. My son was added on my DS-260 form as immigrating with me to the US, and he is also on the Affidavit of Support form.

I got an interview date, and my son was not listed to accompany me to the interview, and I don’t even know if he is supposed to do a medical. I got some information saying that because he is a minor, he is not required to do a medical or interview and I should just bring his documents with me to the interview.

I am just seeking some advice and information on this matter. I eagerly await your response.

TB

Dear TB,

It is most important that in matters of US immigration that you do not take advice from someone who is not skilled in this area. Acting upon wrong advice or misinformation can be life altering and I have seen this happen too often in my 25 years of practising law. US immigration law is second in complexity only to the Internal Revenue Code, and making the wrong move can cause prolonged separation or permanent separation of families.

In this column, because I do not have all the facts and there is no opportunity to ask the writer follow-up questions, I often suggest that the writer seek specific advice from a US immigration lawyer. People sometimes believe because they handled their US immigration matter themselves and XYZ happened in their case, that is the way it is in all immigration matters with similar facts. No two cases are the same, and immigration is a constantly evolving area of US law.

Your first sentence in your email is unclear. It could be that your father filed for you directly, which would make you a direct beneficiary, or that one of your grandparents filed for your father and you are a derivative beneficiary.

If you are a direct beneficiary of a visa petition and you have a minor child, that child would become your derivative beneficiary. If the child was born when the petition was filed, the National Visa Center (NVC) would automatically have sent you a visa bill for the child and a file would have been created at NVC for your son. If the child was born after the petition was filed, it is the responsibility of the primary beneficiary (you, in this scenario) to notify the NVC of the existence of the child and send them the child’s birth certificate and passport. Upon receipt of same, the NVC would create a file for the child, send you a visa bill, and he would proceed with you to receive appointments for medical and the visa interview.

Since your child does not have a visa appointment, I assume that you did not notify the NVC of his existence and there is no file created for him. If he qualifies as your derivative (of his grandfather’s filing), then you need to immediately notify the US Embassy in Kingston and request that he be added to the filing. They will instruct you to proceed and then he will be scheduled for an interview. Simply listing someone on the DS260 immigrant visa application and/or the Affidavit of Support does not mean that they have been added to the filing.

Now, if you are the derivative beneficiary of your father’s immigrant visa petition (meaning your grandparent filed for your father and you are a minor derivative beneficiary), the law does not allow for a second-tier derivative – in this case your father’s grandchild, your son. If this is the scenario, you would have to first secure your residency (as a derivative) then file for your minor child to secure his US residency.

Please see specific advice in your matter from a US immigration attorney, and time could be of the essence if you already have an immigrant visa interview scheduled at the US Embassy.

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