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How can an illegal immigrant become an American citizen?

Published:Tuesday | April 17, 2012 | 12:00 AM
Dahlia A. Walker-Huntington

Dear Mrs Walker-Huntington,

I read your column from time to time and have gained a lot of knowledge. I know someone who has entered the United States (US) via The Bahamas and has been living there for 11 years now in a common-law union with two kids. How can she become a citizen? I'll continue to read your column for more insight.

Thanks in advance.

- SK

Dear SK,

Thank you for your support of this column. If a person enters the US without a valid visa in their name and in their passport, they are considered to have entered the US without inspection (EWI). This designation also applies to anyone who walked across the border into the US, stowed away on a ship or entered the US with false documents.

If a person with the EWI designation was the beneficiary of a petition for residency filed on or before April 30, 2001, they would be eligible to pay a penalty and remain in the US and change their status to that of a permanent resident - once a visa becomes available for them. If they were an immediate relative, i.e. the beneficiary of a visa petition filed by an American citizen spouse, over-21-year-old child or the beneficiary is the under-21-year-old child of an American citizen - they most likely would have already adjusted their status. If they were in a preference category, eg were over 21 years old when their petition was filed or the brother/sister of a US citizen, their documents may be in the final processing stage at this time.

If a petition was filed by a US citizen spouse who has since divorced the beneficiary or a parent who has since passed away - they might still be able to 'grandfather' the old petition if it was approvable when filed.

The April 30, 2001 deadline is crucial because persons who entered EWI, or who are not immediate relatives of a US citizen and are petitioned for after that date, are not able to remain in the US and adjust their status. They are required to leave the US and be interviewed for their residency in their home country. The act of leaving the US triggers an automatic three- or 10-year bar to returning that can only be overcome if the petitioner can demonstrate extreme hardship that can only be alleviated if the beneficiary returns to the US.

Provisional waiver

Currently, the Department of Homeland Security is considering a provisional waiver for immediate relatives of US citizens who would otherwise have to leave the US because of any of the scenarios outlined above and wait in their home countries while an extreme hardship waiver is processed. This waiting in their home countries can take a year or more and results in family separation. Your friend, if she marries an American citizen, may be eligible for a provisional waiver if it becomes available. She would first have to become a permanent resident before she can become a US citizen.

This is a difficult area of immigration law and anyone who is currently in the US and is out of status should consult with an experienced immigration lawyer before making any life-changing decisions.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate & personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida.