Immigration Corner | Can someone who entered the US illegally adjust their status?

Dear Mrs Walker-Huntington,

T here is a person who came to America on someone else’s papers over 20 years ago. The children of this person would like to file for them, without the parent going back to Jamaica. Is it possible for the filing to be done without the parent going back to Jamaica?

– Concerned

Dear Concerned,

To be eligible to remain in the United States and change your status to that of a green card holder, a person must have entered legally and either still be in status and apply after 90 days, or overstayed their status and apply at any time. Additionally, the person must be an immediate relative of an American citizen, i.e., the spouse, parent or under- 21-year-old child of an American citizen.

If you entered the United States without inspection and have a qualifying relative who can petition for your green card, you would need to leave the United States to be interviewed in your home country. Once you leave, having overstayed in America, you face a mandatory three- or 10-year bar to returning to the United States – unless you are granted a waiver. You can now apply for that waiver in America before leaving to prevent you from being separated from your family while waiting on the waiver to be decided. It is an unlawful presence, and the qualifying relative must show that they would experience extreme hardship if the beneficiary were not able to be with them in America, and why they cannot move to the beneficiary’s home country to be with their relative.

However, this waiver is only available to waive the three- or 10-year bar (unlawful presence). If it is such, as in your situation, the person also committed fraud (used someone else’s documents to enter the US), this unlawful presence hardship waiver would not be available. I strongly suggest that this parent and child seek the advice of an immigration lawyer, because the wrong move here could result in prolonged separation or no status.

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 diversity and inclusion consultant; and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com