Immigration Corner: Can my wife file for my child?

Dear Mrs Walker-Huntington, My son went to New York for the summer holiday. Based on the situation in Jamaica, with me not having a job and being unable to take care of him, his mother and I agreed to let him stay in New York and attend school. She enrolled him in a school in New York. What is the procedure to file for him? Should I make my wife file for him? How long would it take for his filing to come through?I was thinking to make him come back to Jamaica in November for a week then go back to the US so his visa would be OK. Will it be a problem for him to re-enter the US? Will he be asked why he is not in school in Jamaica?

- NS

Dear NS,

You didn't say if your wife was an American citizen or a green card holder, or how old your son was. If your wife is a US citizen and your son is in the US legally (i.e., he came to America on his own visa), and you married her before your son was 18 years old and your son is under 21, she can file to change his status. If your son was over 18 when you married your wife, she cannot file for him to get residency whether he is in America or in Jamaica. If he is over 21 years old, he cannot adjust his status to a permanent resident unless a spouse files to change his status.

If your wife is eligible to file to change your son's status, it would take four to six months. If your wife is a permanent resident and your son is under 21 years old, it should take about 18 months for a visa to become available.

If your wife is a permanent resident, your son would not be able to adjust his status unless he was in status. Your son would have to return to Jamaica when his visa/green card is ready. If he remains in the US and attends elementary to high school and leaves to go to Jamaica for his green card interview, as long as he is under 18 years old when he leaves the US, he would be able to have his interview done and be able to return to the US without having any period that he was in the US out of status held against him. If he is over 18 years old when he leaves, he will need a waiver before he could return.

You would need your son's birth certificate and passport in order for your wife to file for his US residency.

- 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. info@walkerhuntington.com