Immigration Corner: Help! I overstayed!

Dear Mrs Walker-Huntington,

I entered the United States (US) in September 2015 and had my baby in December 2015. I booked my return ticket to Jamaica for January 31, 2016. However, in the week leading up to my departure, my mother fell ill and was diagnosed with stage-four ovarian cancer. My mother lives with my sister who works at nights, therefore there was no one to stay with my mother and take care of her. As such, I was forced to stay.

I earned a bachelor's degree in Jamaica and was going back home to my job and my baby's father, therefore I had no intentions of staying in the US. Six months have now passed. Please advise me what steps could be taken to become a green-card holder in the US.

D.W.

Dear D.W.,

I am sorry to hear about your mother's sudden illness. I understand the desire and need to remain in the US to be with your mother, but it is never too late to return home.

Ideally, what you should have done the moment you realised that you needed to remain beyond the six months was to apply for an extension of your stay, providing proof as to what necessitated the extension. Now that you have stayed a few weeks beyond the six months, you can go home and on your return trip, take proof of why you stayed the entire six months and the extra time. The longer you remain in the US beyond the six months allotted, the harder it would be for you to return to the US if and when you do decide to leave. Keep in mind that on your return you may be denied entry. Anyone can be denied entry at the border. The visa gives you permission to legally arrive at the border and to request permission from the Customs & Border Protection officer to enter the US.

If you decide to remain in the States, you will become an undocumented immigrant. Your sister can file for you and so can your mother, but it would take years before you would be able to have a visa available for you, and during the waiting period you would have no legal status. You may or may not be able to change your status years down the road once the visa is available as the law is an evolving creature.

As a visitor, having a child in the US, while not illegal can lead to visa complications if you accepted Medicaid to pay your expenses to have the child. I suggest that you have a full consultation with a US immigration lawyer to explore all your issues to enable you to make a quick decision in your case before you overstay much longer.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. Email: info@walkerhuntington.com