In this week's Consulta Migratoria® column I answer a question from a reader who wants to know how to help her stepdaughter in immigration detention.
Each case is different and the answers vary depending on each person's immigration history.
Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.
This is the column:
I am a permanent resident of the United States. I petitioned my husband and last week he successfully had his consular interview.
My husband has an 18 year old daughter and the embassy told him that he could apply for her as well. The problem is that my stepdaughter is currently in immigration detention in the United States because she tried to enter the country illegally without telling my husband.
Can we ask for my stepdaughter and help her get out of the immigration detention center? -Francy M.
Francy, your stepdaughter could obtain permanent residency on a derivative basis if she meets all the requirements. However, her case was complicated when the authorities detained her when she tried to enter the country illegally.
It is good news that your husband did well in his consular interview. Make sure he gets his immigrant visa and travels to the United States as soon as possible. Your husband will become a permanent resident when he is admitted to the U.S. on his immigrant visa.
Derivative permanent residence for stepchildren of permanent residents
The law provides that as a permanent resident, you may immigrate your spouse under the F-2A family category by filing a family petition. In that petition, you include the names and dates of birth of your spouse's children.
If those children from a previous relationship are unmarried and under the age of 21, they may be able to obtain permanent residence on a derivative basis. There is no need to file a separate family petition for the children.
Since your stepdaughter is 18 years old, she may be eligible to receive derivative residency through your husband once he is approved.
However, you will need to apply for an immigrant visa when available and meet several requirements to immigrate to the United States, including being admissible to the country.
They are going to have to hire an immigration attorney immediately to help your stepdaughter because she violated the law by trying to enter the country illegally and to try to get her out of the detention center.
Ideally, she should be able to apply for permanent residency within the United States. If this is not possible, the attorney should negotiate with the federal government to have your stepdaughter returned to her home country without being deported so that she can then apply for an immigrant visa abroad.
It is of utmost importance that any prospective immigrant who has pending immigration proceedings in the United States does not violate immigration laws. This greatly complicates their cases and may not allow them to receive an immigration benefit in the future.
Please always consult with an attorney before initiating any immigration proceedings. Sometimes there is great impatience to immigrate to the United States. But if there is a way to do it legally, be patient. Even if it takes longer, it will cost you less money and you will avoid unnecessary risk.
