Sat | Jan 23, 2021

Immigration Corner | How will this change of status affect my filing?

Published:Tuesday | June 2, 2020 | 12:05 AM
Dahlia Walker-Huntington
Dahlia Walker-Huntington

Dear Mrs Walker-Huntington,

I SAW your article in the newspaper advising one not to travel while waiting on a visa to become available. I am waiting on the National Visa Center to give me a date, but I have a visitor’s visa and I am currently in the United States (US). When the pandemic broke out, I didn’t want to be alone so I travelled to my mom, who is filing for me. Seeing that I can’t change my status from here with my mom filing, is it possible to get married to my US fiancée and change my status, although I am waiting on a visa to become available?

Thank you for your advice.

– A.S.

Dear A.S.,

My article did not say that you can’t travel to the United States while you have a pending immigrant visa petition. Once a person is in possession of a valid US non-immigrant visa, they are permitted to travel to the United States and ask the Customs and Border Protection (CBP) officer for permission to enter the US. It is up to the CBP whether they find the applicant is admissible. If a CBP officer believes that a person is coming to the US to violate the terms of their visa, they can deny entry. A person with a pending immigrant visa application is seen as one with an intention to migrate and it raises the level of scrutiny by the CBP.

In the category of a parent filing for an adult son or daughter, adjustment of status in the US can only occur if a visa is available and the beneficiary is in status.

In the case where the petitioner is an American citizen spouse, an adjustment of status can be filed for the non-citizen spouse who entered the US legally, and it doesn’t matter if the spouse is in or out of status. It also does not matter that another immigrant visa petition is pending. However, if someone makes any decision to change their status within 90 days of arriving in America, the petition to change status will be denied. The presumption in that scenario is that the person intended to change their status when they arrived as a non-immigrant – in violation of the terms of their visa.

Immigration law is filled with nuances and subtle differences, and it is important that you seek legal advice with your matter. Making the wrong move can have life-altering consequences.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida.