Thu | May 28, 2020

Immigration Corner | This separation is affecting my family

Published:Tuesday | April 7, 2020 | 12:15 AM
Dahlia Walker-Huntington
Dahlia Walker-Huntington

Dear Mrs Walker-Huntington,

I got married in December 2019. My husband had migrated to the States in August 2019. We have two children together who migrated with him.

The distance is affecting our children as they want to be with the both of us. I am presently living in Jamaica. My husband is a green card holder. What is the likelihood of staying in the United States while my husband files for me?

– K.B.

Dear K.B.

Family separation while immigration petitions are pending can be difficult. It can be particularly difficult when young children are involved. A green card holder can petition for his spouse, but the beneficiary spouse cannot remain in the United States while the petition is pending. A green card holder cannot file to change the status of anyone if their period of stay in America expires.

I am assuming from your email that you have a visitor’s visa. You can continue to visit your family while your husband files a petition for you to receive your green card. He should have done so already if you were married in December, 2019. As with any entry as a non-immigrant, the Customs & Border Protection (CBP) officer can refuse anyone entry at the border whom they believe will violate the terms of their visa. Of particular importance to the CBP officer is whether the arriving non-immigrant will leave the United States as they indicated they would during an interview.

You have a couple of options available to spend the maximum time with your family other than regular visits. You can explore attending school in the United States on a student visa. You would need to be accepted into a college or university to pursue higher studies and then apply for a student visa. Keep in mind, however, that a US Embassy consular officer is going to look into whether you intend to return to Jamaica at the end of your studies.

You could also keep one or both of the children with you in Jamaica for an extended period by applying for Re-Entry Permits for them. This would allow the children to remain outside the United States without jeopardising their permanent residency status. Your husband’s petition for you should take about a year to get you to the embassy for an interview. A Re-Entry Permit, if granted, can be for up to two years.

The overlap of your green card interview, your visits to the US to spend time with your family, and Re-Entry Permits for the children, if strategically orchestrated, can maximise your time with your family until you are granted permanent residency. In all applications that you will make, please ensure to be truthful and do not be tempted to answer questions in your immediate best interest. Doing so could lead to allegations of immigration fraud that would only serve to increase the time away from your family.

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.