Could deported man return to US through marriage?

Published: Tuesday | February 5, 2013 Comments 0
Dahlia A. Walker-Huntington
Dahlia A. Walker-Huntington

My brother, who is living in the United States (US) on a visitor's visa, was caught and arrested for using someone else's identity. He will be deported. If his girlfriend, with whom he has been living for over five years, comes to Jamaica and marries him, would he be allowed back into the country?

- G.T.

Dear G.T.,

If your brother has not yet been physically removed from the US, his girlfriend should immediately contact an immigration attorney to investigate his case. There is the possibility that your brother could be permitted to marry his US citizen girlfriend while in immigration custody.

If your brother entered the US on a visitor's visa in his name and in his passport, he could have married a US citizen and changed his status from an expired visitor to that of a green-card holder. Even if he entered with a fake Jamaican passport and US visa, he should still explore whether the upcoming provisional waiver may apply to him and allow him to remain in the US and change his status. If he was charged with immigration fraud, his wife will need to qualify for a hardship waiver.

If the above applies but it is too late to stop his physical removal, his girlfriend can travel to Jamaica and marry him and file for him to join her in the US.

It would appear that at a minimum, your brother would be charged with overstaying his visitor's visa and possibly fraud. If that is the case, he would require an extreme hardship waiver before he could return to the US. The waiver would be required because (1) he could face up to a mandatory 10-year bar from returning to the US, and (2) fraud and misrepresentation.

IDENTITY ISSUE

You mentioned that your brother was using someone else's identity in the US. If he was falsely claiming to be a US citizen, he will be deported and he will be permanently barred from returning to the US. This means that even if his girlfriend comes to Jamaica and marries him, he would not be eligible for any waiver to overcome the bar to his returning. If the person whose identity he was using was not a US citizen, he should be eligible for a waiver if his wife petitions for him for a Green Card.

While as an immigration lawyer I understand that those who are undocumented do whatever they can to survive and remain in the US, the worst thing a person could do is falsely claim to be a US citizen. There is no relief from such a charge unless you can prove that you sincerely thought you were a US citizen.

The US Congress and president both appear to be on the same page to work this year to overhaul the immigration system. This overhaul is slated to include legalisation of those persons in the US who are undocumented, i.e. went to the country illegally or went with a visa and overstayed the time they were given to remain. Persons who fall into these categories should stay tuned to the news and or consult with an immigration lawyer to begin preparing if and when a law is enacted that will give the undocumented some relief. In preparation for the passage of such a law, persons should ensure that they have their birth certificates (if Jamaican, the new computer-generated format, not the handwritten version) and a current passport.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices immigration law in the United States; and Family, Criminal & Personal Injury Law in Florida. She is a mediator, arbitrator and Special Magistrate in Broward County, Florida. info@walkerhuntington.com


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