Fri | Nov 16, 2018

Immigration Corner: What about my children?

Published:Monday | January 4, 2016 | 10:48 AM

Dear Mrs Walker-Huntington,

MY HUSBAND is a citizen of the United States (US) and we got married in 2013.

He filed a petition that same year for me and my children.

He said he placed their info on the documents that he submitted. However, in September of 2015 he was told by the attorney that he needed to file for my kids separately.

My paperwork is now to be sent to Jamaica for report, medical, etc. My questions are:

(1) Can my husband still petition for my kids as mine has not been completed?

(2) Can I make an appeal as he genuinely thought, at the time when the application was made, that because they are minors, they were accounted for via my application and the attorney never said anything though he knew of the kids and;

(3) The process has taken three years and still has not been completed and during that time, my family has been separated.

– JW

Dear JW,

I am sorry that your family has been separated for so long although you are married to a US citizen.

As the spouse of a US citizen, you are an immediate relative and your application for a green card through consular processing should take nine months to a year.

If your children were under age 18 when you married your US citizen husband, he would be eligible to file for them as his stepchildren and they would also be considered immediate relatives and share the same processing time.

Unfortunately, because your husband listed the children, he assumed that he was also filing for them - he was not. He needed to have filed separate petitions for yourself and each child, and pay separate filing fees for each petition.

It is not too late, but your husband needs to act now.

If his lawyer told him from September that he should have filed separate petitions and he hasn’t done that yet, he has wasted precious time. Separately, your file is progressing without the children - it should have been slowed down to allow the children’s petition to catch up.

However, once the file is set for an interview, you will not have the flexibility to slow your filing.

You cannot appeal to get your children on the filing, no matter the circumstance that your family is in and what your lawyer may or may not have told you. File now and with some amount of manipulation, you and your children should be able to join your husband by the end of 2016.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator, and special magistrate in Broward County, Florida.