Immigration Corner - Filing Dilemma

Dear Mrs Walker-Huntington,

My 17-year-old daughter's stepmother (who is a citizen of the United States, and married to my ex-husband) wants to file for my daughter. My main concern is that my daughter just started sixth form in Jamaica (she is Jamaican) and would not graduate until 2015. What would be the best course of action? Should her stepmom file now anyway?

After being granted legal permanent resident (LPR) status, are extensions allowed for students to complete their education before landing in the US? Could she land, then return to Jamaica just to finish up sixth form (she plans to attend college in the US)? What is the waiting period like from filing to granting of a green card? What options are there so that my daughter can become an LPR but finish her secondary education out here?

I would not want her to wait until 2015 to commence the filing process, as by that time, she would be 19 and 'ageing out' would be of great concern for me.

- SH

Dear SH,

As long as your daughter's father and her stepmother were married before she was 18 years old, the stepmother can file for your daughter to become a permanent resident (green card holder) of the US.

As a permanent resident you are supposed to live and work in the States, and if you are not, you can lose your residency. You are also required to file tax returns on your worldwide income. Many green card holders who do not live in the US, often complain that they are hassled at US airports when they enter the States, and others believe that if they enter the US every six months that they will retain their permanent residence status. The reality is that US Customs and Border Protection officers are just doing their jobs when they seek to find out how long a green card holder has been outside of the US.

A green card holder must, by their actions, demonstrate their intent to reside in the States. If a permanent resident is unable to live in the US, they can apply for a re-entry permit that would allow them to remain outside of the States for up to two years - if approved. In certain circumstances, that two-year permit can be renewed for an additional two years. The application for a re-entry permit must be accompanied by proof of the reason for the request and must be filed while the applicant is physically present in the States.

In your daughter's case, at age 17 if she is filed for by her US citizen parent (in this case her father) and she entered the States before age 18, she would be eligible for derivative citizenship. She cannot, however, derive citizenship from a step-parent. Her stepmother can file for her as a minor child until she is 21 years old. Your daughter will not 'age out' at age 18. She has the choice of being filed for now and applying for a re-entry permit, or timing her graduation from sixth form and having her stepmother file then. It takes about nine months to a year for a US citizen parent (step-parent) to file for a minor (under 21 years old) child.

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