Immigration Corner: I'm being punished for honesty!
Dear Mrs Walker-Huntington:
I was banned for five years from entering the US. Can I apply for a US visa before the five-year ban is lifted? My situation is a misunderstanding. I entered the US in 2009 and spent five months after being given six months by the immigration officer at the airport. That was the longest stay for me. The reason for this long stay was my uncle was in a coma. He had a clothing store in Florida. I stayed to assist him, helped to sell in his shop and was paid in cash. It was not intentional.
In 2014, I was on my way to visit a friend to spend three weeks in California. The flight connected in Atlanta, Georgia, and the immigration officer questioned me about working in the US. I admitted to it, my visa was cancelled and I was banned for five years.
I don't believe in being penalised for being honest.
Your situation, while unfortunate, serves as a teachable moment to readers of this column.
When you enter the US as a visitor, you are not permitted to remain for an extended period, and you are not permitted to engage in employment, as you did.
Many persons believe that because, upon arrival in the States, the Customs and Border Protection (CBP) officer stamps their passport with a period of stay that is usually six months, it means that they can spend six months, in the US, and that they are well within their right, as long as they do not stay beyond the six-month period. This is not so. The six months is given for convenience, in the event a person comes in for two weeks and has to stay for a longer period.
It is easier to grant the six months in the passport than to have the person apply for an extension, as the application process for the extension takes a while.
As you found out, even if in previous visits to the States you had a relatively short stay (less than a month), and you have one extended stay - five months - it raises a red flag.
Many abuse visa
It is not surprising that upon seeing that on a previous visit you had stayed five months, the CBP officer accused you of working in the US.
Many persons who have non-immigrant visas abuse their visa by coming to the US, staying months at a time and working illegally in the country. Some have been lucky to have been doing this for years and have never been questioned by a CBP officer, as you were, on a subsequent trip to the US. Others find that when they go to renew their visas that it is denied by the embassy.
While you had a legitimate reason for staying in the US because your uncle was in a coma, it was not legitimate for you to work in his shop and be compensated for the work you did.
So, while you believe that you are being banned because you were honest, you were banned because you worked illegally in the States while on a non-immigrant visa.
Even if you did not admit the fact that you worked in your uncle's shop, the CBP officer could still have cancelled your visa and issued the five-year bar.
In your situation, you have to wait out the five years before applying for another non-immigrant visa. you would need to apply in conjunction with a non-immigrant waiver in order to receive a favourable consideration of your application.
- 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. info@walker