Immigration Corner | Mom worried about leaving her children behind

Dear Mrs Walker-Huntington,

My sister’s husband, who is a citizen of the USA, filed for her. However, the person who did the paperwork omitted her two children from the application. How can my sister add her children to the application. She is worried and doesn’t want to leave them behind in Jamaica?

Thanks in advance for your response.

– J.R.

Dear J.R.,

Unfortunately, persons who have immigration legal cases sometimes go to people who are not immigration attorneys to seek help in petitioning for their family members. This often leads to bad results. In this case, the harm is not irreparable. Immigration law is second in complexity only to tax law in America. It is an area that is governed by written law (statute), political policy, and court interpretation of the law and the policy governing immigration. The law changes daily through court interpretation and policy changes.

In your sister’s case, she cannot add her children to the filing in order for them to migrate to the United States if and when the petition her US citizen husband filed for her to join him in America is approved. There is a legal relationship between her husband and her children – he is either their biological father or he is their stepfather.

FILE SEPARATE PETITIONS

If the husband is the stepfather and the marriage between your sister and her husband took place before the children were 18 years old, there is a legal relationship for immigration purposes. If this is so, he would have to file separate petitions for each of the children. They cannot be a derivative of their mother’s petition.

If the husband is the biological father of the children, he would still be required to file separate petitions for each of his children. In either the biological or qualified stepfather scenario, if the children are under 21 years old, they are considered immediate relatives and would be processed within a year – give a little more time because of the backlog created by the COVID-19 pandemic. If the children are over 21 years of age and single, they would be placed in the first-preference category and must wait several years for a visa to be available to them.

With the knowledge now that your sister cannot add the children to her petition, they should figure out to which category the children would be assigned and consult with an immigration attorney as to how to proceed. If the husband can indeed petition for the children, there will be some lag time between the mother’s visa and that of the children.

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