Immigration Corner | Will my son be admitted to the US?

Dear Mrs Walker-Huntington,

I have a seven-year-old son. He has a 10-year United States visa. He has never travelled on it before, and we plan to do so in December. His father’s wife is filing for both of them. I would like to know if the filing can interfere with our December travel plans and/or any future travel plans? I would also like to know if it could be a case where the filing can take place, but my son will not migrate until he is in high school. Can that be done?

Thank you

Concerned Mother

Dear Concerned Mother,

The holder of a United States non-immigrant visa is granted permission to legally travel to the United States border and ask the Customs and Border Protection (CBP) Officer for permission to enter the United States. That permission to enter may be granted – in which case the applicant is admitted, or it can be denied. There are several factors that goes into determining whether an applicant should be admitted to the United States, and a lot is left to the discretion of the CBP. One of the main considerations is whether the person who is admitted will depart on their stated departure date or the ‘admitted until’ date.

When a person has a pending US immigrant visa application and presents themselves to a CBP officer for temporary admission, the presumption of an intention to remain in America is escalated. Depending on the CBP officer’s determination, that pending immigrant visa application could be grounds for a denial of entry. A person in that situation should always travel with evidence of their intention to return to their home country and await their immigrant visa decision, and that they are only attempting a temporary visit to America.

Parents should know that once they allow their minor children to be petitioned for permanent residency in America by the other parent or a step-parent, they are opening themselves up to a potential custody battle. Often, while the child is living in the United States, communication and visits are cut off and worry and anxiety results. If you are planning to have your minor child migrate to America to live with a step-parent and, in this case, the father, ensure that you have a custody determination order from the Jamaican courts indicating who is the custodial parent before the child leaves, or you may lose custody of your child.

A permanent resident is to live and work in America, a green card is not a visitor’s visa. If a permanent resident is unable to immediately live in America, there is a provision for a re-entry permit that, if granted, allows the US resident to remain outside the US for up to two years without penalty. If a green card holder is spending more time outside the United States than they are inside the US, they can lose their residency.

If the decision is for your seven-year-old son to remain in Jamaica until it is time for him to attend high school, you should consider postponing his filing until he is older.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal ans international law in Florida. She is a diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com