Immigration Corner | My mother overstayed

Mrs Walker-Huntington:

I currently live in the US on an F1 soon to be H1B visa since 2016. My mother lives in Jamaica and she used to work in the US many years ago when she was a young adult.

From what I understand she overstayed her visa and when going back home was told by the officer that she would make sure my mother could never return to the US. Since then my mother has not been approved for even a tourist visa despite this happening decades ago.

Even if this cannot be fixed, I would at least like to understand if something is on her file preventing her from being able to visit me or her family in the US. Would you be able to help me look into this or direct me to someone who can? Thank you.

DAB

Dear DAB,

You did not indicate on which type of visa your mother previously travelled to the United States for work. Nevertheless, any work visa, tourist visa or student visa are all classified as non-immigrant visas. As such, they are initially issued on a discretionary basis and on the understanding that the recipient will travel to the United States and use the visa as they indicated when they applied. Additionally, recipients of non-immigrant visas must demonstrate their intention to return to their home countries at the end of their specified period of stay.

If your mother was explicitly issued a work visa, she would have had a sponsor, i.e. someone/a company for whom she was going to work for a specified period. If she remained in the United States beyond that specified time and then left the country, she would have triggered a mandatory bar to returning the US – regardless of whether she was applying to return as a non-immigrant (temporary) or as an immigrant (permanent). If she overstayed less than a year, the bar is three years. Overstaying for a year or more results in a 10-year bar. The mandatory bars can be overcome with the granting of a waiver – non-immigrant or immigrant.

If after overstaying and sitting out the period of the mandatory bar, a person applies for a non-immigrant visa, the likelihood of them being granted a visa goes down significantly. The view of the US government is that you were previously granted a visa and you abused it by overstaying; and even after the mandatory bar period you should not be given the privilege again because you may repeat your behavior. Notwithstanding the mandatory bar periods, time does not cure the offense and her file will always reflect the overstay. A non-immigrant visa is a privilege not a right.

If there are extenuating circumstances surrounding why the person overstayed the visa in the first place, they can consider applying for a non-immigrant visa with a waiver.

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