Between a rock and a hard place

Dear Mrs Walker-Huntington:

I have a problem and hope that you can help or at least give me some advice. I am an American and married to a beautiful Jamaican woman. We have been married for nine years now. We love each other very much, but for six of the nine years she has moved back to Jamaica and I have been living here. She left for Jamaica in 2002 for two reasons: one was 9/11; and the other, our oldest son was in hospital.

At the time, it was cheaper to live in Jamaica than up here. I was an over-the-road trucker planning to retire to Jamaica. I wanted to ship my truck down and start a small trucking business. To save money, I would live in my truck to save rent expenses and what I didn't send to support my family, I could save. But it didn't turn out that way.

disabled

In 2008, I retired, medically, due to diabetes and it has been downhill ever since. What money we have saved went to medical bills. My truck was repossessed - with just three months to go - because I could not keep up with the payments. I am now disabled. I have my disability benefits, but they don't go far enough. My wife wants to come up here to help take care of me, but the government will not allow her. We have five kids. Three were hers when we got married, we are trying to adopt another, and the baby is ours. It turned out that she overstayed her visa. I had filed for her in 2001 and was approved the following year. But she had left for Jamaica, we found out. We need help, please help!

-TS

Dear Sir:

I am sorry for the hardships you have been experiencing these past years. It would appear that your wife left the US after overstaying her visa and before your application for permanent residency was approved. It also appears that you did not file an application for a change of status, but rather filed a petition for alien relative by itself. Once a person legally enters the US and marries a US citizen they are allowed to file to adjust (change) their status from for example, a visitor or an expired visitor to a permanent resident.

If the file to change status is done before the immigrant's time to remain in the US expires (for example, six months), the immigrant can file for permission to travel during the pendency of the application — advanced parole. If however, the immigrant leaves while the petition is pending; the petition is deemed to have been abandoned.

Visitor's visa

You mention that your wife wants to come back to the US, but the government will not allow her. I am not sure if she tried to obtain a visitor's visa, or if you have filed a new petition for her for permanent residency. If she tries to obtain a visitor's visa, she, in all likelihood, would be denied for a couple of reasons. One is, the last time she was granted a non-immigrant visa, she overstayed. This signals to the Consular Officer, at the US Embassy that she abused her visa and is more likely than not to do so again. Secondly, she has a US citizen husband and, in the eyes of the Consular Officer, that would give her more times to the US than to Jamaica.

If you filed for her for permanent residency, she would more likely than not be denied because she overstayed her initial visa. You did not indicate how long she overstayed, but since she was denied I will assume that she overstayed for more than a year. This would mean that your wife faces a mandatory 10-year bar to returning to the States. However, she could overcome that mandatory bar if she were to obtain a hardship waiver. That waiver would have to show extreme hardship to you her US citizen spouse if she were not allowed to return.

You would both have to prove the legitimacy and the viability of your marriage, (for example, your visits to Jamaica and proof that you were living together at one point). You would also have to document the reasons why your wife returned to Jamaica and the extreme hardships that you are currently experiencing. The fact that you are on medical disability and need your wife to assist you will go a long way towards proving extreme hardship. However, the waiver is a discretionary form of relief and the ultimate decision rests with the officer reviewing your case.

Extreme hardship waiver

If you are not successful with the extreme hardship waiver, you can wait out the mandatory 10-year bar and apply again. You should be successful at that time, barring no other reasons for your wife to be excluded from the US. You may also be able to file petitions for the Jamaican-born children if your marriage took place before the children were 18 years of age.

I wish you all the best with your attempts to have your wife return with your family.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walker huntington.com or editor@ gleanerjm.com.