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Status issues for non-immigrants

Published:Tuesday | April 24, 2012 | 12:00 AM
Dahlia A. Walker-Huntington


I came to the United States in 2004 as a visitor. I have worked and paid taxes from 2004 to the present. My father has been a green-card holder since 2010 and is currently filing a petition for me. The thing is, I have a handicapped brother. Taking care of him is hindering my father from working. My father is separated from his wife. He has to be going back and forth because I live in a furnished room and my landlord lives on the first floor. You know how that goes, they can come by me and only stay for so long. We are trying to place my brother in a home here in the US, but that will take some time. Whenever my dad and my brother come up I am their sole provider.

My dad went back to Jamaica this month and will be coming back in August. My question to you is, do you think I am eligible for a change of status since I am already here in the States? And what help is there for me since my father is doing a petition for me? Being that I am self-employed, when my friends who take care of the elderly take a couple days off, I cover for them. I have been doing so from 2004 to current. That's what I pay tax from every year. Looking forward to hearing from you. I am 35 years old with two sons ages 14 and 18.


Dear KB,

I am assuming that your father obtained his residency from his wife in 2010. This means that he has a two-year conditional green card. If this is so and he is not living with his wife, in particular if he is going back and forth to Jamaica spending extended periods of time in Jamaica he is going to have an issue when the time comes for him to remove the condition on his green card. He should address this issue immediately.

If your dad received his green card in 2010 through someone else's filing, e.g, an adult United States citizen child or a parent, his card would be valid for 10 years and his spending extended periods of time in Jamaica could also have consequences. If he needs to be in Jamaica for an extended period, he should consider filing a petition for a re-entry permit. If granted it would allow him to remain in Jamaica for up to two years.

If it is your brother who is causing your father to be in Jamaica and your brother has legal status in the US, the emphasis should be on getting your brother securely situated in order to enable your father to take up his residency permanently in the US.

Unfortunately, as the over 21 year-old beneficiary of a petition filed by a green-card holder parent, you cannot adjust your status in the US. Even if your father was a citizen and he filed for you (over 21 years old) you could not adjust your status in the States unless you were in status at the time of the adjustment.

Your only two alternatives at this time is to marry a United States citizen and have your husband file for you to change your status in the US, or if you had an adult (over 21 years old) child who is an American citizen - that son or daughter can file for you to adjust your status.

Additionally, while you are in the US working and paying taxes you are doing so illegally as you do not have legal permission to work. You have overstayed your given time to remain in the States and have become an illegal alien without permission to be present in the US. Currently the Department of Homeland Security is extending prosecutorial discretion to persons such as yourself, in that, if you come to the attention of the authorities, your attorney could request that Homeland Security not commence deportation/removal proceedings against you. If granted, you would be allowed to remain in the US, but you would not receive any status.

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.