Immigration Corner | Is it too late for my daughter?

Dear Mrs Walker-Huntington,

When my daughter was about 12 years old, her father migrated to the United States (US) through the process of getting married to a US citizen. At that age, my daughter was a part of the filing process and was referred to as her dad being responsible for her. However, I didn’t give permission for her to migrate. Now every time she goes to the embassy to apply for a J1 visa or visitor’s visa, the consular asks her about that process. Her dad would like to continue or start the process of filing for her, but seems unsure about how to proceed. He is now a green card holder. Your advice would be appreciated.

Thanks.

– M.W.

Dear M.W.,

It appears that when your daughter’s father was petitioned for by his US citizen wife, she also filed a petition for your daughter, her stepdaughter. You did not indicate how long ago that was and, how old your daughter is now and what is the current relationship between the stepmother and the father.

At 12 years old, the stepmother was eligible to file a petition for your daughter as the marriage between herself and the child’s father took place before the child was 18 years of age. If it has been more than two years since the last communication between the US government and your daughter or her stepmother, the file may very well be closed and destroyed. It still shows a record of your daughter having someone or persons in the United States who could file a petition for residency on her behalf. This implies that your daughter has an intention to migrate and hence the difficulty in obtaining non-immigrant visa status.

As a green card holder, your daughter’s father can file a new petition for her if she is unmarried. If she is under 21, that filing should take approximately a year, but if she is over 21 or reaches the age of 21 while the petition is pending, she will be in a category that will take about five to seven years for a green card to become available.

The stepmother could also file a new petition for your daughter and depending on how old your daughter is, it could take one to seven years. If the father and stepmother are still married, it will be an easier standard of proof of the validity of their marriage. However, if they are divorced, they will have to prove that the marriage was valid at inception and the relationship of the stepmother and your daughter.

Dahlia A. Walker-Huntington, Esq is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com