Is my husband in a bind?

Good day Mrs Walker-Huntington,

I have been married to a US permanent resident for one year and three months. I live in Jamaica and he lives in the US.

He is reluctant in applying for citizenship and filing for me because he had a child support case fighting. He was to pay to $700 every month but, instead, was paying $250 every month as instructed by his attorney. Now the money is coming out of his pay cheque because he waited too long to contest the matter and to get an attorney. Therefore, he will have to go back to the lawyers and fight in the court; but until then, he has no choice but to pay as it is been deducted by his employers. He was giving this lady cash and sometimes cheques so he does not have sufficient proof that he was looking after his child who is four years old now.

Will this affect his application for citizenship or his filing for me?

A.S.

Dear A.S.

A US Permanent Resident (Green Card Holder) is permitted to file a petition for alien relative for their spouse. Such a petition is a second preference petition and it takes, on average, about four years for a visa number to become available in that category. However, if a US citizen files a petition for their spouse, that petition is considered an immediate relative petition and is processed without delay. The processing time is normally eight months to a year.

Your husband can go ahead and file a petition for you as a Green Card holder filing for his spouse. You would then have to wait in Jamaica for a visa number to become available before you would be called for an interview at the US Embassy in Kingston.

To be eligible

In order to be eligible for US citizenship, a person must meet certain criteria. Among the criteria is that the person must be of "good moral character". Including in that broad category is the requirement that any person who is obligated to pay child support must show that they are in compliance.

Child support is taken very seriously by the family courts in the US and there are severe penalties for failure to live up to child support obligations. If a person has a child under 18 years of age with whom they are not living, they are obligated to pay child support to the custodial parent for the care of that child. Making sporadic payments, or buying the child what you think the child needs, does not amount to fulfilling child support obligations. Child support needs to be a specific amount each month, in order for the custodial parent to rely upon, to assist with the upbringing of the child.

Each State in the US has a guideline of how much child support is required and are applied to each situation based upon the income of both parents. Once a court of law has determined how much child support is to be paid in a particular case, the amount must be paid. If one party believes that there are discrepancies in how the income for the other party was derived, they can appeal the court's decision. Either party can file to modify the amount of child support they are paying or receiving - once there has been a substantial change in circumstances.

If a person is not living with their child, they should be sure to document all child support payments to the custodial parent. Always pay by check or money order and keep copies for your records. In applying for Naturalisation, if there is a child support obligation and no court order, the custodial parent can sign a notarised affidavit indicating that the non-custodial parent is in compliance by voluntarily paying their child support. They should provide a photo identification along with the child's birth certificate to prove that the person signing the affidavit is indeed the parent of the child in question.

Consequences

Among the consequences of failing to pay child support obligations in the United States are denial of a driver's license, denial of a US passport, denial of US citizenship and jail.

When applying for US citizenship, once you are currently in compliance with an existing child support order you should be able to obtain citizenship. Since your husband's child support payments are currently being deducted from his pay cheque (Income Deduction Order), he is in compliance with his obligations. He should go ahead and file a petition for you as a permanent resident and simultaneously make an application for his citizenship. He should take his records to the interview to show that he is fulfilling his obligations. If he becomes a US citizen he can then upgrade your filing.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices 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 or editor@gleanerjm.com.