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Should I wait,or get married?

Published:Tuesday | March 20, 2012 | 12:00 AM
Dahlia A. Walker-Huntington

Dear Mrs Walker-Huntington,

I am here in the United States going on seven years now and my mom had filed for me four years ago. I am over 21 and I have overstayed on my visa. I have been to two different lawyers and they both told me it is best I get married. Do you think I should do that or wait on my mom's filing to come through? Do I have to go back to Jamaica? My mom is a United States citizen. If I should get married, how long will it take and how soon can my husband file for my son in Jamaica?

- NR

Dear NR,

Unfortunately, you have done what many people have done - be in the process of being filed for by a relative and travel to the United States on a visa and overstay to wait on the filing to come through.

The only persons who, after having overstayed the non-immigrant visas (eg visitors, H-2B, etc), can remain in the United States and change their status to that of a permanent resident are: (a) spouses of United States citizens, (b) under 21-year-old children of United States citizens and (c) parents of over 21-year- old United States citizens. You, as the adult, unmarried child of a United States citizen, cannot adjust status in the United States when your visa becomes available unless, (1) you are in status when your priority date becomes current, or (2) your application for a green card was filed on or before April 30, 2001.

10-year bar

Since as you have indicated your mother filed for you four years ago (2008) and you are over 21 years old, you would have to leave the United States and return to Jamaica for an interview for your green card when your priority date becomes current. However, once you leave the United States after having overstayed for more than a year, you would automatically become subject to a mandatory 10- year bar to return to the United States.

You could overcome that bar by the grant of a hardship waiver to your mother, i.e. your mother would have to document that she was experiencing extreme hardship that could only be overcome if you were returned to the United States and that she could not move back to Jamaica to live with you.

The lawyers' advice that you get married to a United States citizen is sound, as it would appear that is the only way you would be able to legally remain in the United States at this time. As the spouse of a United States citizen who entered the United States legally, and is filed for to change your status, the processing time is usually four to five months to the appointment. At the appointment, United States Citizenship and Immigration Services (USCIS) will want to prove that your marriage is valid and will go into details surrounding how you met your husband, your living arrangements and that you have comingled your assets and your debts.

If at the time of your marriage to your United States citizen husband your son is under 18 years of age, your husband can file a petition for your child and he would be able to join you in the United States. The processing time for a United States citizen parent filing for a minor child in Jamaica is usually nine months to a year if everything is done correctly.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate and personal injury law. She practises immigration law throughout the United States. She is a mediator, arbitrator and Special Magistrate in Broward County, Florida.