Mon | Jan 22, 2018

Immigration Corner | Can my ex-con spouse file for me?

Published:Tuesday | July 5, 2016 | 12:00 AM

Dear Mrs. Huntington,

I have a question and I'm hoping you could help me with it. Can my spouse, who is a United States (US) citizen who has served time in a federal prison for a drugs-related crime who is now on probation, file petition for me? We have known each other a little over two months. We do regular talks on the phone, emails, phone calls, letters, etc.

Best regards.


Dear AS:

The short answer is yes. A US citizen who has been convicted of a crime can file a petition for a family member to migrate to the United States. However, a person with a criminal record is often subjected to a higher scrutiny by USCIS. Although they will not say it, USCIS views the truthfulness of a petitioner who has been convicted of a crime with higher suspicion.

Let us also clarify the use of the word "spouse". The simple definition of this word is someone's husband or wife. Unless you are legally married to someone, you should not refer to them as your spouse. This has actually led to legal issues with persons in Jamaica who have applied for US visas and use this word. Many persons in Jamaica have been using this word to refer to the girlfriend or boyfriend, their fiance or the person with whom they are living and sharing a common law relationship. Unless you have a marriage license, the person is not your spouse. If you refer to a person to whom you are not married as your spouse to a US immigration or Consular Officer, you have committed immigration fraud, so please be very careful.

In your case, you barely know this man, you have only been in a relationship for two months. You also have not indicated that you have actually met this person. Even if he did not have a criminal record, if he were to either marry you now and file for you, or if he were to file a fiance petition for you to join him in America, there would be issues. The relationship is far too young to overcome the presumption that the relationship is fraudulent.

The US Embassy wants to see an immigration case where husband and wife or fiance have had a well-documented relationship. You should spend time getting to know him and to document the relationship with him and keep all the records of your contact for your eventual interview. If he is on probation, he more than likely cannot leave the country, his state or maybe even his county without his probation officer's permission. If he leaves without permission, he will violate the terms of his probation. So, if you have never met him in person, that could prove difficult to be granted either a fiance visa or a Green Card.

If you are serious about the relationship in another few months, have your boyfriend find out from his probation officer if he can be granted permission to travel to Jamaica to meet you and you can take it from there.

- 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.