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Immigration Corner | What can be done now that my son has overstayed?

Published:Tuesday | April 6, 2021 | 12:07 AM
Dahlia Walker-Huntington
Dahlia Walker-Huntington

Dear Mrs Walker-Huntington,

I am kindly seeking advice as to how to proceed in this matter.

I filed a petition for my son who was living in Jamaica in 2016. In 2019, I became a citizen of the United States and upgraded my status accordingly. In 2020, I received an approval notice from United States Citizenship and Immigration Services stating that further follow-up would be done. However, unfortunately by then, my son was already residing in the country (overstayed his visit) therefore, he did not receive the follow-up letter.

To date, he is still currently in the United States, and I would like to know if anything can be done on his behalf from here. Awaiting your reply. Thank you.

– P.D.

Dear P.D.,

You did not say how old your son is now and at the time of filing so let me give you some scenarios.

If he is under 21 years old, as an American citizen petitioner, he is considered an immediate relative, and you, the parent, can file to change his status from undocumented person to a green card holder. If he was under 21 when you became a US citizen, the same should apply.

However, if your son is over 21 years old now and was over 21 when you became a US citizen, he has some serious issues. He would not be considered an immediate relative and has overstayed, therefore, he would not be eligible to adjust his status. This means, if he were to pursue your petition, he would have to return to Jamaica for consular processing. Once he leaves the United States, he would be subjected to a mandatory three- or 10-year bar to returning to the United States. He would be eligible for a waiver of the mandatory bar that would require you to show that you are experiencing extreme hardship that would only go away if your son were to return to America.

There is a provisional waiver available to your son (if he is over 21) to waive the three- and 10-year bar that you could apply for before he leaves the United States. This provisional waiver is also an extreme hardship waiver, but it allows the person who would face the three- or 10-year bar to apply for the waiver and wait in America for its approval before leaving for Jamaica to complete consular processing.

This is a complicated process and should be deeply explored with an immigration attorney before making any decisions on how to proceed. Making the wrong decision could result in years of separation. I do not know why your son decided to overstay his visa when he had an immigrant visa pending, but this is a practice that his highly discouraged.

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. info@walkerhuntington.com