Immigration and Children
Installment Sixty-Nine
Along with the excitement of receiving an immigrant visa from the U.S. Embassy comes the inevitable challenge of facing separation from family and friends. This week’s Ask the Consul column addresses the separation of children from one or more of their biological parents in two sensitive scenarios. The column first addresses how a child may accompany one parent emigrating to the U.S. when the other parent is not otherwise emigrating. The second question comes from a parent who wishes to migrate with her non-biological child.
The answers provided below only briefly address these issues. It is essential that anyone hoping to migrate to the U.S. – with or without family members – takes great care in understanding the issues involved and in preparing themselves to the greatest extent possible. In this way the visa applicant can hope to lessen the sadness of leaving behind the familiar and start out their new life on the best possible footing.
Q: I am divorced from my daughter’s mother and expect to migrate to the U.S. soon and take my daughter with me. Will this be a problem?
A: Children from divorced or separated families can migrate to the U.S once certain requirements are met and a petition has been filed and approved on behalf of the child. For immigration purposes, any child under the age of 16 years old needs to meet one of the following criteria to immigrate with you:
Permission for the child to emigrate from the non- traveling parent. The parent who is not immigrating must appear before a consular officer at the Embassy in Georgetown to sign a document that says the child is permitted to emigrate to, and reside in, the U.S with the other parent.
A court order granting the immigrating parent full custody of the child and permission to take the child out of the jurisdiction to reside with that parent. The U.S Embassy, Georgetown does not accept signed letters or Deeds of Consent if the non-traveling parent resides in Guyana.
If the non-travelling parent resides in the U.S, a notarized letter stating that the child is permitted to immigrate with the other parent; in this case, a copy of the biographic page of the passport for the parent in the United States must be presented.
If the non-traveling parent lives in any other country, he/she is required to visit the U.S. Embassy or Consulate in that country to have the permission document notarized by a consular officer.
If your child is over the age of 16 years old, immigration would be possible without permission from the non- immigrating parent as long as all other required documents are in order. Once the child enters the United States under the legal and custodial care of the U.S. petitioning parent, then the child is eligible to apply for a U.S. passport under the child citizenship act.
Q: I have raised my niece as my own child for years and now I have an immigrant visa application pending. Can my niece go with me?
A: Under U.S. immigration law, beneficiaries of certain immigrant visa classes are excluded from bringing derivatives (spouse and children under 21) along to the U.S. when they migrate. Adults applying for immigrant visas as either the spouse or parent of a U.S. citizen are not allowed to bring derivatives. For more information on whether or not your visa class permits derivatives, please refer to www.travel.state.gov.
If your visa class permits derivatives, you must also satisfy adoption requirements. The Embassy staff understands that children are left in the care of relatives or friends for many reasons. The law on adoptions, however, is very strict. Under immigration law, your niece can only go with you if both of the following two requirements are met:
She was adopted by you while she was under the age of 16 (or is the natural sibling of such child who was adopted by the same parents while under the age of 18); and
She has been in the legal and physical custody of, and has resided with, the adopting parent(s) for two years.
In order to satisfy the first provision, the adoption must have been both legal and final according to the laws of Guyana, and only a true legal adoption will satisfy immigration law. Documents such as deeds of custody, sworn affidavits and other informal custodial or guardianship documents are not recognized under U.S. immigration law.
To satisfy the legal custody requirement, you must have responsibility for the minor child under the laws of Guyana. The adoption decree may mark commencement of legal custody. If, however, you were granted legal custody by the court prior to the adoption, this may be counted toward the fulfillment of the legal custody requirement as well. Finally, there must be evidence to show that the adopted child has resided with you for at least two years, thereby establishing a parent-child relationship.
The Embassy strongly encourages all persons who are immigrant visa applicants, or may become immigrant visa applicants in the future, to understand the legal relationship with their non-biological children. Failure to do so may result in temporary or permanent family separation if your non-biological child does not qualify for an immigrant visa. www.travel.state.gov provides extensive guidance, as well as links to other sources that will help you understand this very important provision of U.S. immigration law.
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“Ask the Consul” is a periodic column from the U.S. Embassy answering questions about U.S. immigration law and visa issues. If you have a general question about visa policy please email it to us at AskGeorge@state.gov. We select questions and publish the answers in Stabroek News and on our website at http://georgetown.usembassy.gov/guyana/ask_con.html. For more information about visas please see http://www.unitedstatesvisas.gov or http://georgetown.usembassy.gov/.
Other than the questions we select, we DO NOT respond to questions sent to Ask the Consul. Please contact the visa inquiries unit (email visageorge@state.gov or call 225-7965 between 8 am- 12 pm and 1 pm- 4 pm Monday through Friday) if you have questions about a specific case.