Dear Mrs Walker-Huntington,
My sister lives in Kingston. In 2003, violence was at an all-time high in her neighbourhood. She was pregnant and had a seven-year-old child who was scared out of her mind. I lived in New Jersey and offered to keep my niece until things improved. I wanted her to be able to go to school while she was in my care. I spoke to someone at the school and was told that I first needed to file for custody of my niece. That is what I did. Custody was granted, and I enrolled her in school. She stayed for one school term and then her mom sent for her and I sent her back to Jamaica.
My niece is now 16 and living in a similar situation as in 2003. The violence and shootings have been sporadic and have affected children and young people in the community far more than in the past. My sister has asked for my help again. So my niece came back to the States in July of this year. With my custody papers, I was able to re-enroll her in public school.
I do not wish to break any laws or jeopardise the fact that my mother has filed for my now-married sister and her family, including my niece, since about 2005.
This is where I need your advice. Can I keep my niece with me and in school on a visitor's visa, or do I need to file for a different kind of visa for her, and if so, what kind? Please bear in mind that my goal is to remove her from that unpredictable situation and keep her safe for as long as possible.
Because your niece is now 16 years old, it is too late for either you or your mother as United States (US) citizens to adopt her in the US for her to gain immigration benefits as the adopted child of a US citizen. That should have taken place when she was originally in the US with you in 2003.
US law allows undocumented children to attend public elementary and high school; however, once these children graduate from high school, their future becomes untenable. The Obama administration has instituted Deferred Action for Childhood Arrivals (DACA) with effect on June 15, 2012 for children
Your niece does not qualify for DACA. She would have had she remained in the US since 2003 and was not adopted by a US citizen. While she is enrolled in high school now, once she graduates, she is going to face some serious immigration issues. Once she reaches 18 years of age, she will begin to accrue unlawful presence in the US and would only be able to gain lawful status if she marries a US citizen.
Because of the date of filing by her grandmother for her mother (2005), your niece will not be eligible to pick up her Green Card in the US. She will have to leave for an interview in Jamaica. At the current rate of processing, persons in the F3 visa category (married daughter of a US citizen), it is taking 10 years for a visa to become available. This means approximately another three years before your sister will be scheduled for an interview at the embassy in Kingston. While no one can say how long a filing takes for completion, we can only estimate based on the priority dates that are currently being processed.
At this time, you can apply for a student visa for your niece to attend private school in the US. This would allow her to remain in the US in status and would preserve her eligibility for the Green Card when the time comes in approximately three years.
The other option that you have is for your niece to return to Jamaica now, or at least before her 18th birthday, before she accrues any unlawful presence.
Wishing you all the best.
Dahlia A. Walker-Huntington 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. firstname.lastname@example.org