Overstayed, married, afraid of getting the boot

Published: Tuesday | January 15, 2013 Comments 0

Dear Mrs Walker-Huntington,

I have read on numerous occasions the expert advice you have given to people unclear on United States of America (USA) immigration issues, and as such, seek your assistance.

I got married to a USA citizen a few months ago, and my spouse and I are in the process of submitting dual petitions in another two weeks. Trouble is, by the time we got married, I had already overstayed my non-immigrant visa by just over six months, though I still haven't reached the one-year mark as yet.

My confusion lies with the three- to 10-year bar, where I would possibly have to leave the USA for Jamaica and/or apply for a waiver (which might not be granted) to offset the timeline of the bar, because I had overstayed six months or more of my given time. This is opposed to another criterion, which says if you are married to a USA citizen, you will be allowed to stay in the USA while petition takes place. Will I still need a waiver here as well?

A very ambiguous setting for me here, especially as I have finite resources. Your advice will be greatly appreciated.

JT

Dear JT,

Since you arrived legally in the USA and are now married to a citizen, you should not leave the USA during the processing of your application for a green card. You are eligible to file to adjust/change your status from an expired visitor to that of a green-card holder as you are considered the immediate relative of a USA citizen. The fact that your visa and or your period of stay have expired, becomes irrelevant once you are filing to adjust your status.

Only persons who are ineligible to adjust their status in the USA are required to leave once a green card is available, and they can become subject to the mandatory bars. If you had illegally entered the United States or were not an immediate relative of a US citizen, (e.g. the spouse of a green-card holder, the adult son or daughter of a USA citizen or green-card holder, the married child of a USA citizen or the sibling of a USA citizen) you would be ineligible to adjust your status in the USA and would be required to return home for an interview at the USA Embassy once your priority date became available.

Having been in the USA out of status for six months, you would trigger the three-year mandatory bar once you left; and if you were out of status for a year more, leaving would trigger the 10-year mandatory bar.

The US Department of Homeland Security has finally announced the implementation of a "provisional waiver" that would allow immediate relatives of USA citizens to be able to remain in the USA and process their waivers as opposed to leaving the USA, returning to their home countries, and waiting on a waiver to be processed. This provisional waiver goes into effect in March.

What you are embarking upon is a life-changing process and you should not start upon the journey without full knowledge of what you are doing. It pays to hire a competent immigration lawyer at the beginning, because, too often, it ends up costing more at the end. Your mention that you and your spouse are filing "dual petitions" is unclear as there is no 'dual petition' process in such a filing.

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@walkerhuntington.com.


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