Fri | Jun 18, 2021

Immigration Corner | My daughter is pregnant, is her filing void?

Published:Tuesday | May 11, 2021 | 12:06 AM
Dahlia Walker-Huntington
Dahlia Walker-Huntington

Dear Mrs Walker Huntington,

I am writing on behalf of my daughter. She is being filed for and I just found out that she may be pregnant. What are her options? Will the filing process become void? Will she have to start here? What are the best- and worst-case scenarios? I am panicking because it has been in the making for over three years. Two other persons are also on this filing, including me. She just submitted her documents and may be due for a call any time soon. Will she be barred totally once she’s pregnant? What steps should I take?

I do not want to leave her here. I am looking forward to your response in The Gleaner.

Thank you.

J Ta

Dear J Ta,

You did not say how old your daughter is or who filed for you or your daughter. I am going to assume, because you said that there are other persons on the filing, including yourself, that it is your parent or your husband’s parent who filed a petition. If it is in fact a grandparent who filed and your daughter is not the direct beneficiary – she is the derivative beneficiary – she would not be able to have her child be included in the filing. This does not mean that the entire filing is void. As long as your daughter is otherwise eligible, she will remain eligible for permanent residency – notwithstanding her pregnancy.

The scenario above applies in any situation where your daughter is the derivative beneficiary, for example, if a sibling filed for you or your husband and your daughter is not the direct beneficiary. Note, however, that if your US citizen son or daughter (over 21 years old) filed for you, your daughter would not be eligible to be a derivative beneficiary in that scenario.

Depending on how far along the petition and your daughter’s pregnancy are, she might be able to get her interview and migrate before she gives birth. This will also depend on whether she can have her medical done in Jamaica before her interview. If she is able to have her medical done and be interviewed before the baby is born, she would be able to migrate and have her baby in the United States.

If she is not able to migrate and then have her baby in America and is forced to have the baby in Jamaica prior to the visa approval, she will have to file a petition for the baby once she becomes a permanent resident. It is a heart-wrenching situation where a mother is forced to leave a baby in Jamaica and migrate. However, while there would be some separation, your daughter could in that scenario file for a Re-Entry Permit that would allow her to legally remain in Jamaica with her baby until a visa becomes available for the baby. At the consular processing phase, your daughter would need to demonstrate to the US Embassy that she would migrate once the baby received a visa.

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.