Since we've overstayed ... can we just remain and file for permanent residence?

Published: Tuesday | December 31, 2013 Comments 0
Dahlia A. Walker-Huntington
Dahlia A. Walker-Huntington

 Dear Mrs Walker-Huntington,

I have seen where you have helped many persons. I do hope you can do the same for me. My daughter and I have overstayed on our visitor's visas. My fiancÚ has three years to be eligible for United States (US) citizenship. We are currently planning on getting married. Should my fiancÚ wait until he is a citizen to petition for us? Do we have to return to Jamaica?

- MJ

Dear MJ,

Although I have addressed this topic many times over the years in my column, I feel compelled to respond each time the question is raised because lack of information can result in long and sometimes permanent separation.

Quite simply, if you enter the US on a non-immigrant (visitor's) visa and overstay and you are the immediate relative of a US citizen, you can file to adjust your status, i.e., you can change from an expired visitor to a permanent resident. An immediate relative is the spouse of a US citizen, the parent of a US citizen, or the under-21-year-old child of a US citizen.

In your situation, for your daughter to be eligible to adjust her status, your marriage must take place before she is 18 years old and her stepfather must file to adjust her status before she is 21 years old. A permanent resident husband can file for his wife and stepchild, but they cannot adjust their status in the States. They would have to return home to pick up their papers.

Since you have overstayed your visa, if you leave the US before adjusting your status, you will face a mandatory bar from returning to the States. If you overstayed for six months or more, you will face a mandatory three-year bar; and if you overstayed for a year or more, you will face a mandatory 10-year bar from returning to the States. The only way to overcome the mandatory bar is if your husband could prove extreme hardship and be granted a waiver. If your daughter leaves the US before she is 18 years old, unlawful presence (the overstay) will not be attributed to her while she is a minor.

You and your fiancÚ need to review your situation with an immigration lawyer and make the best decision for you and your daughter. Getting married now may be in your best interest, but you should discuss all your issues with a lawyer.

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. Email

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