Sat | Sep 25, 2021

Immigration Corner | Should I stay or go back home?

Published:Tuesday | June 15, 2021 | 12:06 AM
Dahlia Walker Huntington
Dahlia Walker Huntington

Good day Mrs Huntington:

I am a young woman who is trying to get some advice on my current situation regarding my status in the United States (US). I recently left Jamaica on a visitor’s visa. I am with my father, who is a green card holder, and his wife, who is an American citizen. I am being influenced not to go back home.

My thing is that I don’t want to be in the US and can’t go home if needs be. I am over 21 years old, and my father did not make any provisions prior to file for me. However, at this point, I am being told that I don’t have to marry to get legalised in the country. How is that so and I am over 21?

I was also informed about the I130 form, and upon my reading, it speaks of sponsoring/filing for a family member who is living outside of the US. To me, I don’t qualify for that option while already in the US.

At this point, I am just trying to get some advice on what my possible options are, and as an immigration lawyer, what would you recommend that I do if I do decide to stay?

– T.M.

Dear T.M.,

Your instincts are spot on, and while I will give some generalised information, I strongly suggest that you consult with an immigration lawyer in the United States.

As the adult daughter (over 21 years old) of a green card holder or an American citizen, you cannot adjust your status in America if the time given to you upon arrival with a visitor’s visa has expired. Immediate relatives of American citizens (spouse, parent, under-21-year-old child) can apply for adjustment of status to that of a permanent resident even after their allocated time to stay in the United States has expired. All other family applicants must remain outside of America, or they can apply to change status, if they are in status, and a visa is currently available for them.

A permanent resident father can file a petition for an adult, unmarried daughter for a green card, but it will take several years for a visa to become available. The same applies for a US citizen stepmother if her marriage to the father took place before the stepchild was 18 years old. However, if an adult daughter remains in the United States on a visitor’s visa, she will become out of status once the time given when she arrived (usually six months) expires, and she would be unlawfully in the United States. Once a visa does become available in the respective category, the adult daughter would not be able to be interviewed in America for the green card and would be required to leave the country. Once the out-of-status person leaves, they would trigger a mandatory three- to 10-year bar and would be required to apply for a hardship waiver before leaving to avoid the mandatory bar.

Unfortunately, family members and friends who do not understand the intricacies of immigration law believe that they are helping other family members by encouraging them to remain in America illegally, very often, it goes horribly wrong. Please find an immigration lawyer and have your specific situation analysed and not risk becoming unlawfully present in the United States and/or jeopardising your ability to travel freely.

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 diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida.