Musings on mom's marriage

Good day,

I need your response urgently on this matter. My uncle is filing for my mother but the thing is, she got married last year. Since July this year, we started receiving some immigration papers and everyone is getting concerned about their status.

I would like to know if the fact that she is married may delay her processing. Lots of persons have been telling her she needs to get a divorce because it is going to affect the petition.

Also, at the time when my uncle began filing, she sent all her children's birth certificate to prove we are her dependants. Persons have been telling us that if we reach 21 years at the time of the petition is granted, we will not be able to go with her.

I need to clear up all these misunderstandings.

Thank You.

Best regards,

R.S.

Dear RS:

I presume from your letter that it is your mother's brother who filed a petition for your mother to migrate to the United States (US).

A US citizen brother filing for his sister in Jamaica is a fourth-preference petition and the one that takes the longest to be processed. Currently, it is averaging about 10 years for visas to be available in that category.

Whether a sibling is married or single does not affect petitions in the fourth-preference category. Therefore, it does not matter that your mother married last year. In fact, it is to your mother's benefit because now that the file is being processed for the visa interview, her new husband will be able to migrate with her.

Even if your mother was married to one man at the time of the filing, divorced him and married another prior to the immigrant visa interview, she could migrate with her new husband.

letter of explanation

Your mother must notify the National Visa Center (NVC) of her current marriage by supplying an original marriage certificate, an original birth certificate for her new husband and a copy of the biographic page of her husband's passport. These documents should be submitted with a letter of explanation to the NVC setting out the circumstances. If either your mother or stepfather were married before, they need to provide certified copies of their decree absolute, (final divorce) with the package.

Once the NVC receives the required documents for your stepfather, they will send a visa fee bill and the visa fee will have to be paid in order for his filing to continue.

Persons in the fourth-preference category are also allowed to migrate with their under 21-year-old children as derivative beneficiaries of the original petition. However, the migration is supposed to take place before the children are 21 years of age. The US government passed the Child Status Protection Act (CSPA) in 2002 to clarify when a child ages out, or no longer qualifies as a child. The law is rather complicated and a calculation has to be done to determine when a minor child can still travel as a derivative beneficiary after turning 21 years of age. You may need the help of an immigration lawyer to assist you in the process. However, as even the NVC will tell you if you call them to inquire, the final decision on who qualifies under the CSPA is in this case, the US Embassy in Kingston at the time of your mother's immigrant visa interview.

If your mother receives her immigrant visa bill and none for her children, she should contact the NVC.

Please do not take the advice of family members and people on the street who are not familiar with the complex area of US immigration law. There are fine nuances in the system that takes expertise to decipher. Persons tend to try to give advice to others based on their own experience or on perceived knowledge of the cases of others. No two cases are the same, and facts determine the outcome of a case.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises 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. info@walkerhuntington.com or editor@gleanerjm.com.