Dear Mrs Walker-Huntington,

I have a 16-year-old nephew who lost his mother (my sister) when he was nine years old. His grandmother (my sister’s mother) gained legal custody of him in Jamaica through the family court. Three years later, my mom (his grandmother) received her green card to reside in the United States (US) so she left my nephew with a close friend and her children. She returned the following year to get her grandson a non-immigrant visa to be able to visit her in America in the holidays, which he got, but she was warned not to keep him.

This year, my mom’s friend and her children migrated to Canada and my mom had to take him because she didn’t have anyone for him to stay with. He is now 16 years old. What option does she have to keep him? She doesn’t want him to overstay and become an illegal in the states. He is there one month now.

- PD

Dear PD,

I am not sure what legal custody means – was his grandmother granted guardianship or did she adopt him?  If she did not adopt him, she unfortunately will not be able to legally petition for him to live in the US at this time.

To adopt a child and to have that child live legally in the US requires the adoption to take place before the child is 16 years of age, and the adoptive parent to live with the child for two years before or after the adoption.  If the child is an orphan, the two-year residency requirement is not needed. If your nephew was not previously adopted, he is now too old to gain US immigration benefits from any US adoptive parent.

If she did adopt him, she should now file for his residency and could have done this years ago.

There are not many options available for your nephew if he was not previously adopted. His grandmother could enroll him in private high school and apply for a student visa to allow him to legally remain in the US with her. Once he graduates, she could enroll him in college and continue his  US student visa. Although he has no legal status at this time, he can be enrolled in public high school in the US, but once he reaches age 18 he will begin to accrue unlawful presence in the States and will need to leave America before he is 18 to avoid this problem. She could also find someone else to have him return to Jamaica and finish high school and when he graduates get him into college in the States on a US student visa.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practiSes immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com [2]