Ioften read your articles in The Gleaner and decided to send you an email to ask for your assistance. I have a question regarding the immigration law in the US and I am hoping you can help me. My mother recently received her green card (through filing by her 27-year-old son) and is about to migrate to the US. However, she has a 10- year-old son whom she would like to take with her. The 10-year-old has a visa and will be in the US for the summer. My mother would like him to stay there while she sorts out his papers. We have been exploring all options and none of them are pointing to the possibility of that working out.

I am thinking the US may have a solution for a person about to migrate who has a young child. Is there any option you know of? If you could point me in the right direction or to someone else who would be able to help, it would be greatly appreciated.

- SE

Unfortunately, when a United States citizen petitions for their parent, if they have a sibling, that sibling is unable to migrate at the same time as the parent. There is a category for siblings to file for each other, and the US citizen brother or sister has to file a separate petition. That process takes approximately between 10 to 12 years before a visa becomes available for the intended immigrant.

It does create a dilemma for parents of young children as to what to do. Certainly, once the parent has received their green card, they can file a petition for the minor child. However, that process takes about four and a half years before a visa becomes available for the child. If the child is over 21 years of age, and unmarried, the green-card holder parent petition takes about nine years.

Although the child has a visitor's visa, the parent should not allow the child to become "an overstay" in the United States. Notwithstanding the fact that public elementary and high schools in the United States will admit undocumented children, it is not advisable to place children in that position. A person becomes undocumented once they have overstayed the time allowed on the I-94 Landing Card, not only their non-immigrant visas.

If the child remains in the United States as an undocumented alien, and for any reason the mother cannot become a United States citizen, she would not be able to change the child's status to a permanent resident. The child would have to leave the US to obtain his green card. Leaving the United States after being undocumented triggers certain mandatory bars to returning.

If, however, the child were to remain in the United States and be adopted by a US citizen before turning 16 years of age, and live with that US citizen for at least two years, that US citizen can petition for the child to be granted permanent residency. It is important to note that adoption severs all legal ties to a birth parent, and is a decision that should not be entered into lightly or for immediate gratification without thinking about the long-term consequences of the action.

The other option that your mother has is to have her minor child admitted into a private elementary school and apply for a student visa for her child. If the student visa is granted, the child will be able to legally live with her in the United States and attend private school. While the child is attending school, your mother can file a petition for alien relative and and pick up the visa in Jamaica in about four to five years.

No waiting period

This timing will coincide with your mother's eligibility for US citizenship. As a US citizen filing for a minor child, there is no waiting period as this is an immediate relative category. It normally takes about nine months to a year for those petitions to be processed.

While it is heart-rending for a parent to leave their minor children behind in situations like these, it is very important not to have the children become illegal aliens in the United States. Anything can happen to the parent to leave the child in the untenable position of not having a way out when it comes to legalising their status.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practices law in Florida in the areas of immigration, family, corporate & personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. Send your questions and comments to info@walkerhuntington.com or editor@gleanerjm.com