Immigration Corner | What jeopardy does my daughter face for overstaying?

Dear Mrs Walker Huntington,

My daughter is 32 years old and she lives in New York. She went to the USA in 2016 and her mother, who is a US citizen, encouraged her to stay. A filing was done and responded to. She was told by a lawyer that she would have to return to Jamaica to do the interview. However, another lawyer told her that the filing was wrong.

Having read your article in The Gleaner over the years, I told her that I would write to you and get your advice. I would really appreciate your response to set my mind at ease.

NH

Dear NH,

Since I do not know what was filed for your daughter, I cannot tell you if it was the incorrect filing or not. I can tell you that an adult (over 21 years old), unmarried daughter of an American citizen is in the first preference category for immigrant visas and that currently, visas are available for persons who were filed for before December 1, 2014.

Your daughter has been in America since 2016 and has clearly overstayed the time given to her at the airport (usually six months). Your daughter cannot change her status from an expired visitor to that of a permanent resident of the United States, because she is currently out of status (overstayed), with her mother’s filing. A person in your daughter’s position would have to return to their home country to Consular Process and be interviewed in their home country for the permanent visa.

However, once a person who has overstayed their allotted time leaves the United States, they trigger a mandatory bar to returning to America. In your daughter’s scenario, she has overstayed more than a year and would trigger a mandatory 10-year bar to going back to America. This means that although she may be qualified for the green card based on her mother’s filing, if she leaves for the interview in Jamaica, she would be barred from returning to America for 10 years.

She could prevent this mandatory bar by applying for a Provisional Waiver while she is still in America, before she leaves. If she is approved, she would be able to travel to Jamaica for her interview without facing the mandatory 10-year bar. There are specific steps to be followed in a case like this, and your daughter should work with a US immigration attorney to follow the steps for a Provisional Waiver before leaving. If she leaves the US without the approval of a Provisional Waiver, she can still apply for a waiver from Jamaica – but she would be stuck in Jamaica while the waiver application is being processed. That could be up to two years or more in Jamaica.

Persons should not follow the advice of family members who encourage them to overstay in America without securing proper legal advice, because this can be life-altering.

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 diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com