Can she appeal embassy's decision?

Dear Mrs Walker-Huntington,

My wife travelled to United States (US) in 1980 on a visitor's visa and she overstayed the time allotted to her. When she came back to Jamaica, she got her passport backdated, showing that she had spent only three months instead of a year.

In 1986, she returned to the States and was stopped by the US immigration officer at the airport and was returned to Jamaica the following day. Her sister, who is a citizen of the US, has filed for her and our family. My wife did an interview at US Embassy in Kingston and was turned down because of the infraction that took place in 1986.

Is there any way she can appeal this decision?

- AL

Dear AL,

Unfortunately what your wife did was commit immigration fraud and that fraud never goes away. When a person travels to the States and the immigration officer asks you how long you want to remain and you tell them a few weeks and they stamp six months in your passport, it is not intended for you to remain six months in the US. A regular visitor is supposed to have a job and/or ties to return to their home within a few weeks. The Department of Homeland Security (DHS) stamps six months as a courtesy to those persons who come for a short trip and end up with an unplanned visit for longer than they intended.

As of May 1, 2013 in certain cities with international airports and by May 21, 2013 at all international air and seaports, the entry and departure of visitors will become fully automated. As one of the triggers necessary before the implementation of any immigration legalisation reform in the US, DHS has to ensure that the borders of the US are secure. What would seem like an impossible task has some specific benchmarks, one of them is to ensure that when people enter the States, they leave when they are supposed to. Prior to this month and certainly when your wife travelled in the 1980s, the visitor to the US would receive an entry stamp in their passport and the bottom half of their arrival/departure record - the I-94. With the new automation, the visitor's passport will be scanned and the information that would normally be on the paper I-94 will be available to the immigration officer electronically. When the visitor leaves the US, the airline's passenger manifest will be electronically transferred to DHS and the visitor's departure will be electronically recorded.

WASTE OF TIME

While persons would sometimes have their passports 'back-stamped' to lessen the time recorded as being spent in the States and would often be caught on subsequent visits or when they went to renew their visas, they should not even bother with this anymore. It will be a complete waste of time. All departures will be electronically recorded.

If a person overstays six months to a year they currently face a mandatory three-year ban from returning to the US. If you overstay a year or more, you face a mandatory 10-year bar. Had your wife sat out her 10 years for overstaying in the US, the current immigrant visa petition filed by her sister would have been approved as the 10-year bar would have been surpassed.

However, because your wife committed fraud she is inadmissible to the US now and forever. There is no waiver of this inadmissibility that flows from sibling to sibling; it also does not flow from child to parent. The waiver does flow from parent to child and spouse to spouse. Because your wife is the primary beneficiary, yourself and your children as derivative beneficiaries are not eligible for the visa due to the inadmissibility of the primary. There is also no appeal of this decision.

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