Immigration Corner | How can we get my brother to migrate with our father?

Dear Mrs Walker-Huntington,

I am seeking advice on behalf of my father and brother. My dad is in the process of emmigrating to the US to be with his wife.

The plan is to add my brother as a derivative child since he’s under 21 years old ... he’s 20 years old to be exact, and his name was added to the petition prior to the approval of the I-130.

The problem we’re having is my dad’s visa appointment is scheduled for June and his medical for mid-May. We have emailed the embassy to get instructions on how to proceed with adding my brother, but it’s been weeks and we haven’t got a response.

My brother turns 21 in July and will become ineligible to immigrate with our dad.

Can you please advise me what to do next, and if there’s a way to contact the embassy other than email, because their contact numbers are always busy.

CM

Dear CM,

If the marriage between your father and his wife took place before your brother’s 18th birthday, his stepmom is eligible to file a petition for your brother. If it did not, your father will need to petition for his son once he becomes a lawful permanent resident.

If the marriage did take place before your brother was 18 years old, and the stepmother is a US citizen (USC), your brother cannot be a derivative on this petition. His USC stepmother will need to file a separate petition on his behalf for your brother to obtain his residency via his stepmom. If this is so, she needs to file immediately to have the petition received before your brother is 21 years old. If the USC stepmother files before he is 21, his age will be preserved as a minor, even if the process goes on beyond his 21st birthday.

If the marriage took place before your brother’s 18th birthday, and the stepmother is a green card holder, your brother can be a derivative of the petition. This should have been done at the National Visa Center stage – not when the file is already scheduled for an interview with the US Embassy. The addition of another person to a petition changes the dynamics for the affidavit of support.

However, the US Embassy can facilitate the addition of your brother as a derivative, if he so qualifies. If you do not receive an answer from the embassy before your father’s June 2023 appointment, your father can make the request for his son to be added as a derivative at the time of his interview – if the son qualifies.

It is important that your brother’s status is clarified before he is 21 years old, as it could mean the difference between him migrating now with his father, or migrating in a year or several years.

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 ans inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com