How do I file for my children?

Published: Tuesday | January 8, 2013 Comments 0
Dahlia A. Walker-Huntington
Dahlia A. Walker-Huntington

Dear Mrs Walker-Huntington,

I am a United States (US) green-card holder. I have lived here for three years now. I would like to know what is the process of filing for my five- and three-year-old sons and how long will it take. What are the requirements? Thank you for your assistance in advance.

- TW

Dear TW,

It appears that when you received your permanent-resident status (green card) you already had your two children. If the children were derivative beneficiaries of that petition, they are eligible for follow-to-join benefits. They would be considered derivative beneficiaries if the person filing for you was your parent, sibling or your green-card spouse. Any other petitioner, eg your adult son or daughter or your US-citizen spouse would have had to file separate petitions for the children.

If your children qualify for follow-to-join benefits, you would need to contact the National Visa Center or an attorney, to begin the process. The benefit of follow-to-join is that the waiting period would be much less than if you have to file new petitions for the children.

If your children do not qualify for follow-to-join benefits, as a permanent resident you are permitted to immediately file for the children. In fact, you could have done so the moment you received your green card. I am assuming that your children are still in Jamaica. If they are, the procedure will require them to follow the consular process through the US embassy in Kingston. As a green-card holder filing for these young children, they will be in the F2A category and that filing is taking a little more than two years to be completed.

However, if your children are in the US as overstays, as a green-card holder you would not be able to adjust their status. They would have to return to Jamaica to collect their visas. Although they would be technically overstays, the mandatory 10-year bar to returning to the US would be automatically waived for them as they are under 18 years old. Due to the time you have been in the US (three years) you are two years from being eligible to file for US-citizenship (if your petitioner was anyone other than a US-citizen spouse and you are still married and living with that spouse - in which case it would be three years). If you were to file for your children in Jamaica now, you might be able to upgrade your petition if you receive your citizenship before the petition (based on the F2A category) is completed.

If your children are in the US as overstays and you receive your US citizenship, you would be able to adjust their status in the US without the need to consular process.

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. info@walkerhuntington.com


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