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How can I take my children to the US?

Published:Tuesday | January 6, 2015 | 12:00 AM
Dahlia Walker-Huntington - United States

Dear Mrs Walker,

I need your advice on a matter. My stepson is in the process of filing for his father and me. He is an American citizen. His father and I have been married for more than 17 years now. The situation is this, we both have two minor children ages 14 and 7. We all have a 10-year visitors' visa.

If the filing is approved, how can I have my children stay and live with us in the United States?

Your advice is much appreciated.

- S.T.

Dear S.T.

This is a predicament in which many families find themselves. Despite the stated objective of American immigration of family reunification, many persons find themselves separated during the filing process.

As the stepparent of an over 21-year-old American citizen stepchild, if the marriage to your spouse took place before the American citizen was 18 years old, you are considered an immediate relative (IR). As an IR, your petition for residency is processed in nine months to a year if you consular process, and four to six months if you adjust status.

Unfortunately, because there is a sibling category, your children are not eligible to be derivatives of your stepson's petition. He could conceivably file separate petitions for them, but the waiting period in the sibling category is currently taking almost 13 years. Either you or your husband can file for the children once you become Permanent Residents. The children would be in the F2A category, and that is currently taking almost two years to be processed.

After making your entries as Permanent Residents, either you or your husband can apply for a Re-Entry Permit, and if approved, return to your home country for up to two years to be with the children, while the other parent files the F2A application for the children's residency.

The other alternative that is available to you is to apply for student visas for the children to attend private school and then file for their green cards. The children would not be able to adjust status until one parent becomes a US citizen, (and the children remained under 21 years old).

If you take the children to the United States on their visas to live while you file for them, they would be able to attend public school, but once their time to stay in the country expires, they would, for all intents and purposes, be illegally in the United States. If you file for them and they returned home for their green card interviews, as long as they left the United States before age 18, their unlawful/illegal presence in the United States would not be held against them.

I know it is an uncomfortable thought to leave your minor children behind, but think through all your options carefully and resist the urge to have the children be in the United States illegally.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States, and family, criminal & personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida, and an adjunct professor at Miami Dade College's School of Justice. info@walkerhuntington.com.