Most people immigrate to the US in order to make a better life and future for their children. Therefore, it surprises me when some people take such risks and chances in connection with their children’s immigration situation. Even though the parent may have had the opportunity to bring their child to the US long ago, for one reason or another, they put-off doing so. This sometimes results in the child being unable to immigrate, or has to wait many additional years to do so.
Here are some typical situations where parents could have brought their children to the US but did not do so right away:
• I wanted my child to first finish school in the Philippines before bringing him to the US.
A parent could have brought his or her child to the US years ago, but decided to wait until after the child graduates college, and only then, the parent starts to take steps to bring the child to the US. In some cases, the parent waits until the eve of the child’s 21st birthday. I’ve come across several situations where a child was left behind in the Philippines to finish school, but “aged-out” and had to wait many additional years, because they he or she was not qualified under the Child Status Protection Act (CSPA).
In other situations, the child was scheduled for an embassy interview, but he or she had a mid-term or final exam on the date of the interview, and decided to take the exam, rather than go to the interview, and also aged-out.
To avoid this situation, the parent should have brought the child to the US as soon he or she is able, and if they wanted the child to finish school in the Philippines, then secure a re-entry permit, and let the kid go back to finish the studies.
• I Married an American Citizen, but I’ll wait a few years before having my spouse petition my child.
Under immigration law, if a person marries an American before their child’s 18th birthday, the American is able to petition that step-child without having to adopt. Some people marry Americans when their children are still young, but do not have their spouse file a step-parent petition for many, many years.
However, I’ve come across situations where marital difficulties later arise in the relationship, and the American divorces the person, without ever having filed a step-parent petition. In other words, the natural parent waited too long to have their spouse file a petition for their child, and missed the opportunity. They should have had the American spouse file the petition as soon as possible, or at least file a petition of their own in category F-2A (Minor Child of Green Card Holder).
• Leaving the “derivative” child behind.
Some petitions include children, such as employment-based petitions and various family-based petitions– as long as the child is still under 21 years of age. Sometimes, a parent is able to obtain a green card through that petition (which also includes his “derivative” children), but he delays in bringing the child to the US, for a variety of reasons, such as finishing school, let the parent have a chance to get financially settled, etc. In the meantime, the child may age out and not be qualified under the CSPA, or the principal beneficiary dies, thereby affecting the child’s eligibility to thereafter immigrate under that particular petition.
In one situation, the priority date on the parent’s petition became current, and the parent decided to bring only the eldest child, and later bring the three younger children to the US in “stages”. However, after the parents and the eldest arrived in the US, the priority date retrogressed. It is now three years later, and the family is still waiting for the priority to become current again. In the meantime, two of the “younger” children have already turned 21. Now the parents have heartache and ulcers over their decision.
The bottom-line is that if a visa is available, grab it now! Don’t wait or delay because unforeseen circumstances or calamities may arise that affect your child’s ability to immigrate later on. If they are in school, still get them the green card now, and send them back on a re-entry permit. If you’re married to an American who does not yet want to raise your child in America, again get the green card and at least send the kid back. But don’t wait until the child ages out or there are other changes in circumstances, which could possibly jeopardize your child’s future ability to immigrate to the US.
I would suggest that you seek the advice of a reputable attorney, who can analyze your situation and determine the best and fastest way to bring your kids to America.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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