Sorting out my daughter's status

Dear Mrs Walker-Huntington,

Good day. My question is: Can I file I-485 for my 16-year-old daughter who has overstayed her visitor's visa which has now expired?

I am a permanent resident for almost four years. Her petition was approved and a visa is now available. Also, please help me to understand. I recently lost my job and now receive unemployment benefits.

My projected 2010 benefit is above the poverty line. Because I have no one else in my household to file an I-864A, will the USCIS accept my benefits alone as sufficient? I also have my last three years IRS transcripts with earnings over the poverty line.

- D.R.

Dear D.R.,

As a permanent resident you are unable to file an I-485 to adjust the status of anyone. Only an American citizen can file to adjust the status of an immediate relative, that is, a parent, a spouse or a minor child.

Notwithstanding the fact you say a visa is now available for your daughter, she cannot adjust her status because you are not a citizen. However, if her petition for US residency was filed before April 30, 2001, she could adjust her status based on Section 245i of the Immigration and Nationality Act and pay a penalty. That law ceased to exist on April 30, 2001, and has made it extremely difficult for many persons who are unfamiliar with the nuances of the US's immigration laws to navigate the system.

If your daughter's priority date is current, she would have to pick up her visa in Jamaica. The difficulty she would encounter is being in the US for more than a year, she faces a 10-year bar to returning once she leaves after being out of status. The immigration regulations, however, do not assign unlawful presence against a child. The precept is a child has no control over where they reside. However, if you send your child back to Jamaica to consular process, it is going to take longer than usual while the technicalities are worked out.

If you received your permanent residency through marriage to a US citizen and you are still married and living with that spouse, you now qualify to apply for citizenship under the three-year requirement. If however, you received your residency through someone other than a citizen spouse, you will have to wait four years and nine months before you can apply for citizenship.

Additionally, if you received your green card through marriage to a citizen, your spouse can file for your daughter as your marriage took place before your child was 18 years old. If your sibling or parent filed for you to receive your green card, your child could have accompanied you legally to the US with a green card. However, if an older American citizen child petitioned for your residency, the younger sibling would not have been allowed to accompany you legally.

A person who is receiving unemployment compensation can petition for a family member and use their current income. However, the petitioner must also use their last year's income-tax return, along with their current income, to determine if they meet the poverty guidelines requirement. If you do not meet the poverty guidelines, you can ask anyone, friend or family, permanent resident or US citizen to be a joint sponsor and file a separate affidavit of support. The joint sponsor must prove that they can support their family along with the intending immigrant. They must produce proof of employment, current pay stub and last year's income-tax return and W-2 or Form 1099.

You have to decide if you are going to continue to allow your child to remain illegally in the States and pursue your citizenship and then move to adjust her status, or if you are going to go the route of consular processing and face the fact your child will have to go back to Jamaica for an undetermined amount of time.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. Email info@walkerhuntington.com or editor@gleanerjm.com.

The immigration regulations, however, do not assign unlawful presence against a child. The precept is a child has no control over where they reside. However, if you send your child back to Jamaica to consular process, it is going to take longer than usual while the technicalities are worked out.