Immigration Corner | I have overstayed my US visa

Good day Mrs Walker-Huntington:

I have overstayed my US visa. I am in the United States for four years. Can my grandmother, who is a US citizen, file a petition for me?

My brother is also a permanent resident. Can he file a petition for me?

SBw

Dear SB:

A grandmother cannot file for an adult grandson/daughter and can only indirectly file for a minor grandchild. Your grandmother can file directly for her son or daughter, and if there is a grandchild under 21 years old, that child can be a derivative beneficiary of the petition – when a visa becomes available. Whether a grandmother is a US citizen or a green card holder will determine how long it will take for a visa to become available when she files directly for her son or daughter. If the beneficiary son or daughter is single or married is also determinative on when a visa becomes available.

Your permanent resident brother cannot file a petition for you – he would need to be a US citizen to file for a sibling.

Having overstayed your US visa, you have limited options to gaining your residency through a family petition to adjust your status. Your petitioner must be a US citizen and be either a spouse or a son/daughter over 21 years old to file and for you to remain in the US and gain residency. Any other eligible petition, e.g., a parent or a US sibling would require you to leave the United States and be interviewed in your country for the Green Card. Complications also arise if the derivative beneficiary has overstayed.

As an overstay, if you leave for that interview, you would trigger (in your case) a mandatory 10-year bar to returning to the US. However, you could apply for a provisional hardship waiver that if approved, would allow you leave the US for the interview and not face the 10-year bar.

As an overstay, your position is precarious, and you should consult directly with an immigration lawyer to ensure that you make the right moves and not further jeopardise your position.

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