Mon | Mar 19, 2018

Immigration Corner: Can my sister's ban be lifted?

Published:Tuesday | March 22, 2016 | 12:00 AM

Dear Mrs Walker-Huntington,

I am a naturalised United States (US) citizen.

My sister stayed in the US on her visitor's visa about three months past the time stamped in her passport by the immigration officer at the Miami airport in 2001.

She had her passport back-stamped and also turned in her I94 form, going back to Jamaica.

She then travelled back to America but was sent back to Jamaica pon her arrival at the airport in Miami, and was told she cannot come back to America for 10 years.

Is there anything that can be done so that she can apply again for a visitor's visa?

- VA

Dear VA,

Your sister, by overstaying her permitted time in the US, and leaving the US, triggered a mandatory bar to returning to the country.

If a person overstays up to six months, they face a mandatory three-year bar to returning to America.

If they overstay by a year, or more, and leave, they face a mandatory 10-year bar from the US.

You indicated that, on a subsequent trip back to the US, she was told she had a 10-year bar. This means she must have overstayed by at least a year.

Unfortunately, your sister further complicated her life by back-stamping her passport to make it appear that she did not overstay in the States. She has committed immigration fraud and this makes her permanently inadmissible to the US.

In either instance (mandatory bar or immigration fraud), to be able to return to the US, a person would need a waiver, even if they are being filed for permanent residence.

The waiver is only available if the person has a qualifying relative, who can demonstrate extreme hardship (a sister is not a qualifying relative).

In applying for a visitor's visa, the overstay and immigration fraud also make your sister ineligible for a visa. She could, theoretically, apply for a non-immigrant waiver but the likelihood of her being granted a visitor's visa to return, after she abused her first opportunity, is slim.

- 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.