Immigration Corner | Entered legally but now undocumented

It is unknown how many undocumented Jamaicans are in the United States, but overall, it is estimated that there are between 10-12 million undocumented persons living in America. There are currently several pathways to becoming a legal immigrant in the United States (US) if you entered the country legally. To enter the US legally means that you were inspected by a Customs and Border Protection (CBP) Officer, e.g. you entered the States with your own passport and your own visa and you have overstayed the time permitted in the country.

When you enter with a visa, the CBP officer admits you to the US. Some persons believe that because they entered with a visa and overstayed the time allowed at the airport that they are somehow not undocumented. In most cases, you become out of status/undocumented the day your time to stay in the country expires. In other cases where you are admitted for 'Duration of Stay/Studies', you are sometimes permitted to remain a set number of days in the US after your purpose has ended.

If your period of stay has expired, you can become a lawful permanent resident if an immediate relative files to change your status from a non-immigrant or an expired non-immigrant to that of a permanent resident. Immediate relatives are US citizen spouses, parents of US citizen sons and daughters (over 21-year-old offspring), and under 21-year-old children of US citizen parents.

If your period of stay has not expired and you are in the US for 90 days or more, an immediate relative can also file to change your status to a permanent resident.

A US citizen wife or husband filing for the other present some of the most problematic filings. US Citizenship & Immigration Services (USCIS) assumes that all marriage petitions are fraudulent and the burden is placed on the couple to prove the bona fides of their marriage. They have to demonstrate that they are commingling their assets and debts, that they are familiar with each other and their surroundings and their families. The penalties for entering into a fraudulent marriage are severe - up to five years imprisonment and a US$250,000 fine. Allegations of marriage fraud also follow an immigrant, and any subsequent petition for residency will refer to the marriage fraud.

PRESENT ISSUES

Parents and children filing for each other can present issues in particular where the children were not born during a marriage or was not later legitimised. USCIS in these instances want to prove biological relationship and parent-child relationship. The latter can sometimes be difficult to prove for a variety of reasons as USCIS wants to show involvement between parent and child before the child's 18th birthday. It is important to keep photographs and documentary evidence of the relationship.

In other familial relationships that cannot adjust status - siblings of US citizens, over 21-year-old sons and daughters of US citizens or permanent residents, married sons and daughters of US citizens and spouses and minor children of green-card holders - you must leave the US to consular process in your home country for your US residency. Once you leave the country, you trigger a mandatory bar to returning (three or 10 years), that in some cases can be overcome with a waiver.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com.