Immigration Corner | Should I allow my children’s stepmother to file for them?

Dear Mrs Walker-Huntington:

I l ive in Jamaica and I have a nine-year-old son and a four-year-old daughter. I am recently divorced and their father works and lives in the United States (US). He intends to apply for his green card, as he has remarried a citizen and would like to file for my children at the same time with himself.

My dilemma is that I do not wish to deny them that opportunity, but they are too young to be denied their mother’s regular involvement at this stage of their lives.

He requested their birth certificates and a letter of permission from me to be stamped by a JP. I am wondering if I can allow him to file for them but write in the letter that they can visit twice per year and are not to reside in the US until they are 15 years old.

If that is not possible, I am considering letting him file for them at a later date. They could get regular visas to visit him in the meantime. My concern is that he is not trustworthy, so I can’t just make an agreement for him to send them back after each visit.

I look forward to hearing from you soon. Thanks in advance from your response.

Concerned mother

Dear Concerned mother:

You have every right to be concerned about agreeing to have your children’s stepmother file petitions for them to obtain US residency. This is one of those complicated – legally and emotionally – issues that I see in my office all too often. A non-custodial parent has the opportunity to file for their child in Jamaica and the custodial parent is torn between giving their child the opportunity for US residency and losing custody of their child.

In your situation, your divorce documents should speak to the physical custody of your children. If you do not have a court order clearly stating who is the custodial parent, you should obtain one, or consult with your divorce attorney to have the custody order amended to clearly state that your children are to remain living with you until they are 18 years old.

If you allow your children to be filed for by their father or his wife, implicit in that permission is that you handed over custody to your ex-husband. That implicit permission could be used by your ex-husband to try and physically keep the children in America, and since you do not have a pattern of him sending the children back after a visit, you would be seriously exposing yourself to a custody issue in the United States. Such custody battles are extremely costly and put the children in the middle of such cases.

Keep in mind also that with a green card, the children are supposed to live in the United States and if they remain outside the United States for extended periods, they could potentially lose their US residency. They can apply for re-entry permits to request to remain outside the US for up to two years.

As in this case where you know that your ex-husband cannot be trusted, you would be opening yourself and your children to potential hardships and separation. Your children are considered ‘children’ for immigration purposes until they are 21 years old, and if filed for by their US citizen stepmother or father when he is a US citizen, they are immediate relatives. The processing time would be the same as if they were filed for today (barring no changes in immigration laws by the US Congress).

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 special magistrate in Broward County, Florida. info@walkerhuntington.com.