Immigration Corner |How to overcome a mandatory immigration bar

Dear Mrs Walker-Huntington:

I used to travel on the hotel programme. In 2008, my boyfriend’s mother filed for him and he migrated to America. At that time, I was in the US on a work visa, so I did not go home. I stayed in America, and we got married in February 2009 and had a baby. That same year, he filed for me, but when the paper came, I had to go to Jamaica for the interview. So I came to Jamaica and was denied the visa, reason being I overstayed on my visa in America. When my husband became a US citizen, he refiled for me. I went to the embassy and was denied again. They say there was a 10-year waiver on me so I can’t get a visa till 10 years. The 10 years will be up in two years. Do you think they will give me the visa this time, or is it a waste of money filing again? Thank you. Have a blessed day.

– M.H.

Dear M.H.,

Unfortunately, you have been poorly advised during your immigration journey and this has led to the unnecessary separation from your husband for years.

A permanent resident/green card holder cannot file to change the status of their spouse who has overstayed their non-immigrant visa (e.g., B1/B2 or H2B). That immigrant spouse has to leave America to have their green card interview at the US Embassy in their home country. Once a person who has overstayed their visa leaves the United States, they trigger a mandatory 10-year bar on returning to the United States.

That mandatory bar can be overcome with the granting of a waiver. The US resident spouse (or other qualifying relative) has to file a ‘hardship waiver’ and demonstrate to the Department of Homeland Security that he/she is experiencing extreme hardship that will only go away if the immigrant spouse is allowed to return to the United States and why the US resident cannot live in Jamaica with their spouse.

You could have remained in the United States (albeit undocumented) until your spouse became a US citizen, and he would then have been able to file to change your status in America from an expired H2B worker to a green card holder. The moment you left, you triggered the bar, but your husband could have filed a waiver the moment you were denied. You did not need to wait for him to become a US citizen to file a second petition.

Since your 10-year bar has not expired, you have two options now: you can either file the waiver now or wait out the bar. If you choose to wait out the bar, you may not have to refile and may be able to resurrect your pending petition. Your situation is an unfortunate, sad situation that could have been prevented. Please consult with an attorney before making leading decisions that can be life altering.

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 mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com