Jessica is a green card holder who was continuing her studies in Manila. She visits her parents in the United States every six months during her semester breaks. While in her senior year in college, Jessica gave birth to a child. The father of the baby refused to acknowledge the child and abandoned Jessica.
After graduation, Jessica was asked by her parents to return to the United States with her baby. She is apprehensive about filing a petition for the child since she is only a green card holder. She was told that it may take a couple of years before the child gets an immigrant visa. Is there a way that the child may immediately accompany Jessica back to the United States?
Derivative beneficiaries
A spouse or child born before an immigrant’s admission to the United States gets the principal’s priority date and can accompany or follow-to-join the principal beneficiary.
These family members, also called derivative beneficiaries, do not need to have separate visa petitions. Their names are usually declared and included in the visa applications of the principal beneficiaries.
Recording child’s status
The same rule applies to a green card holder who gives birth while on a temporary trip abroad. For the child to return to the United States with the mother, there are two requirements that must be met: (1) child must travel within two years from birth, and (2) the green card holder-parent must travel with the child and the travel must be on the first return to the United States after the birth of the child.
As the child will not need a visa to accompany the green card holder-parent, certain documents must be presented to the immigration inspector at the US port of entry. The accompanying parent must be able to show the parent-child relationship. Among the documents that must be presented are the passport of the child, green card of the parent, birth certificate of the child from the National Statistics office, and, proof that the parent has not abandoned her residence in the United States.
One of the requirements of conferring immigrant status to the child is that the accompanying parent must have maintained resident status in the US despite the temporary stay in the Philippines. Hence, it is important to keep in mind that there is only a two-year period to return to the United States after the child’s birth.
Children below 21
In addition, those who return after more than a year must be able to demonstrate to the Customs and Border Protection inspector that the stay outside the United States was temporary and that the ties in the United States are strong. If the immigrant was studying, a school record or transcript must be carried together with the other documents upon arrival in the United States.
Conferring immediate resident status on a child less than two years old without a visa application at the consulate applies in limited cases where the requirements mentioned above are met. It applies after the parent receives her green card status. In the case of children born before the parent applies for immigrant status, they may either be derivative beneficiaries of family petitions or may also acquire a following-to-join status as derivative beneficiaries.
Children below 21 years old may have the status of an immigrant based on their parents’ acquiring green card status. These apply to children born before the parent receives their immigrant visas and the parent’s visas were acquired under any of the family or employment based preferences categories. Unlike the rule on those two year old or less, these below 21-year-old children must apply for visas at the US consulate as derivative children. They get their parent’s priority dates as following-to-join even after their green card holder parent has left for the United States.
Severe backlogs
For the month of September 2012, the US Department of State released its visa bulletin showing the priority dates that are being processed for family petitions. For adult children it may take anywhere from 10 years to 20 years before the visas are processed. Applying for derivative status for a child before he or she turns 21 may avoid lengthy waiting periods. If the child is not qualified as a following-to-join child, filing the petition right away after receiving the immigrant visa may be the appropriate route.
(Tancinco may be reached at law@tancinco.com or at 8877177 or 7211963)