Immigration Corner | Can my husband get a work permit?

Dear Mrs Walker-Huntington,

I am a Jamaican living in the United States legally since 2016. My Jamaican husband visited me in 2020 and we decided that it would be easier for us if he stayed to help with our son, so I filed an I130 form. We received a receipt notice. However, we have not had any other updates since.

We were wondering if we can go ahead and file for a work permit for him, since we did not do so in the beginning? Or is it too late for that? We have been trying to contact the United States Citizenship and Immigration Services, but we are yet to be connected to a live representative.

My husband and I would really appreciate your response. Thank you.

– GM

Dear GM,

When a person remains in the United States beyond the time they were allotted when they arrived, they are undocumented and subject to removal if they did not request an extension.

Although you did not specify, I assume that you are a green card holder and not a US citizen.

The beneficiary of a petition filed by their green card holder (permanent resident) spouse cannot adjust status (i.e., change their status to a green card holder) in America if they are out of status – as in the case of your husband. Only a US citizen can adjust status for a spouse who is out of status. As the beneficiary of a green card petition filed by a permanent resident spouse, the immigrant spouse have their immigrant visa interview in their home country.

However, if an undocumented person leaves America after being out of status, it triggers a mandatory bar to returning – in the case of your husband, a 10-year bar. This bar could only be overcome if the immigrant obtained a waiver before leaving the United States, and if they did not, they would remain in their home country while the waiver was processed.

A US work permit is not available to a family petition beneficiary unless they are eligible, and an adjustment of status is filed.

If you have been a green card holder for more than five years, have been in the US more than you have been outside the United States during the preceding five years, and no absence from the US was for six months or more – among other requirements – you might be eligible to apply for US citizenship.

In your case, if you become a US citizen, you could file to change the status of your husband to that of a permanent resident. But keep in mind that until then, your husband will remain undocumented. Making immigration decisions without proper, individual consultation with an immigration attorney can have negative consequences.

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