Immigration Corner | Can my daughter’s grandmother file for her?

Good morning Mrs. Walker-Huntington

Can my daughter’s grandmother file for her even though her son (my daughter’s father) died? She is filing for all her children and grandchildren except my daughter as her father had died and she had not included his name in the section where she was asked about the number of children she has.

She has three children including her son who died which is my daughter father. She says I must let her daughter (my daughter’s aunt) adopt my daughter for the filing as this would be easy for my daughter. Can you please explain this to me. Thanks

SB

Dear SB

A grandmother cannot file for a grandchild. A mother can file for her son/daughter and if that son/daughter has a minor (under 21-year-old) children, they can become derivative beneficiaries of the grandmother’s petition for her son/daughter.

Unfortunately, because your daughter’s father died, she has no immigration connection to her grandmother. Even if the grandmother were to list her deceased son on anyone’s immigrant visa petition, the fact that he died gives his children no immigration benefits.

There is some merit to the assertion that one of the aunts could adopt your daughter and that she could migrate with her aunt. However, it is not as simple as an adoption. First, the adoption would need to take place before your daughter was 16 years old. Second, your daughter has to live with her aunt for two years before or after the adoption for immigration benefits to attach. Even so, US immigration makes it quite difficult for the migration of adopted children when one or both parents are still alive – even if the adoption takes place before the child is 16 years old and even if the child lives with the adopted parent.

The family should speak with a US immigration attorney to see if the parameters can be met and for the full complexity of an adopted immigrant petition to be explained to you all.

Dahlia A. Walker-Huntington, Esq is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com