Dear Mrs Walker Huntington,

I am writing regarding a matter with my son and his wife, who is a green card holder for a little over a year. My son’s father-in-law petitioned for his wife several years ago and it came through last year. They had planned for her to go to the US, settle down, get a job, and then return to Jamaica and get married. Shortly before leaving in June 2023, she discovered she was pregnant but had to leave anyway.

As a high-risk pregnancy, my son travelled to spend some time with her and returned to Jamaica after five weeks. He again travelled in December 2023, as the baby was due in January 2024.

Based on the situation, they diligently researched the ways in which he could stay legally and on the advice of an attorney overseas, they got married and submitted the paperwork for his petition to receive both SSN and work permit. He did his medical, as was requested as well.

They were advised that the petition was rejected as there was no priority date and he was out of status. His filing was done before his time in the US expired.

They had consultations with two other attorneys, who said not much could be done at this stage and it would be best for him to return home. He has now overstayed the six months. He has formed a tight bond with his daughter as he takes care of her while his wife goes to work. I am so disheartened, because once he leaves, he won’t be able to travel for a while, and I’m sure there will be psychological impact from the separation.

Please advise of the best possible route to take at this time.

SA

Dear SA,

A green card holder cannot file to adjust the status of their spouse unless the visa category is current. Only a US citizen can file to adjust the status of their immediate relatives who legally entered the United States.

I do not know what the lawyer advised your son and daughter-in-law, but I always discourage green card clients from filing to adjust status of their spouses because the preference category fluctuates, or the application to USCIS may arrive after their six months in the country has expired.

In reviewing the Visa Bulletins, the F2A category (spouse of a green card holder) for January 2024 was not current – it has not been current for a long time, and certainly was not current at any point in 2024. So, your son’s adjustment of status was doomed to fail from the beginning.

I am afraid that the consensus that your son has to return home is accurate. If he remains in the US he will be deemed unlawfully present and subject to removal. He would have to remain unlawfully in the US until his wife becomes a United States citizen – and until then he would not have the right to work or legally remain.

He has already overstayed the six months, but he is not in the mandatory bar position just yet. If he stays out of status in the United States for six months or more (after his permission to visit has expired) and he leaves, he will face a mandatory three-year bar to returning to the United States. If he is out of status for a year or more, and leaves the US, he will face a mandatory 10-year bar to returning. Those bars apply both to a non-immigrant and an immigrant pathway to returning. The bars can be overcome with the approval of a waiver.

The longer he remains in the US – even if he does not overstay by six months and face the mandatory bar – the more difficult it will be for him to return to the US as a visitor. Families, unfortunately, face these forced separation periods during the immigration process. As a family, your son and daughter-in-law need to make alternative arrangements for the care of the child – he may consider taking the baby to Jamaica while he waits for his status in America to become tenable.

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 [2]