Immigration Corner | Will my mother be penalised for overstaying by four months?

Dear Mrs Walker-Huntington,

I saw your response to someone on JamaicaGleaner.com, and I wonder if you would be kind enough to respond to my question if you can.

I have a parent who overstayed her tourist visa from Jamaica less than 180 days this year. She only stayed by four months.

However, she now has a surgery/doctor’s appointment in the US in the next month or so. Can I apply for a waiver, and would this be accepted at Jamaican immigration for her to travel?

SB

Dear SB

When a person is granted a non-immigrant United States visa (NIV), it is a privilege bestowed by the United States government. All NIVs have limitations, not the least of which is the time allotted for a person to legally remain in the United States.

Often, when a person comes to a US border with a non-immigrant visitor’s visa, they are granted a six-month period of stay within the United States. It is not intended for the visitor to remain in the United States for that six-month period. That period of time is granted mostly for convenience to the visitor – in the event of some unforeseen circumstances that would require them to remain in America longer than a week or two. This convenience removes the necessity to apply for an extension of the period of stay – which takes several months to process.

The particularity of the 180 days is that anyone who remains in America out of status for 180 days but less than a year and leaves the US is automatically barred from returning for three years. If that person is the beneficiary of an immigrant visa within that three-year period, they would need a waiver of the mandatory bar.

A non-immigrant such as your mother who overstayed for four months – approximately 120 days – is not per se subject to the mandatory bar, but for all practical purposes would be inadmissible to the United States for remaining in the country for 10 months. The reality of this is that she could be denied admission to the United States on a subsequent visit or be denied the renewal of her visa. The moment she realised that she needed to remain beyond the time allotted by the Customs and Border Protection Officer, she should have applied for an extension of her stay.

It appears that your mother has only been outside of the US for a couple months in 2023, which in an of itself is a red flag. On her next visit to the United States, she should travel with evidence of why she stayed in America for 10 months, why she is travelling back so soon after returning, evidence that she did not work without authorisation during her 10-month stay (i.e., how she supported herself), that she was not receiving government benefits during that 10-month stay and will not be a public charge on the US government during any subsequent visit. She may or may not be granted permission to enter during her next trip and may even have her visa revoked. If that happens, she can reapply for a visa at the US Embassy in Jamaica and will need a non-immigrant waiver at that time to be considered for entry.

It is not the Jamaican immigration authorities that would prevent your mother from travelling to America. It is the US Customs and Border Protection that grants entry to persons arriving in America. At times, the US Government will cancel a person’s visa and or notify the airlines not to board someone in their home country.

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