Immigration Corner | I overstayed my visa, can I get a waiver?

Dear Mrs Walker-Huntington,

My mother, who is a green card holder, has petitioned for me to migrate to the United States. The problem I’m having is, I overstayed my US visitor’s visa. Will my visa overstay be waived if I marry a US citizen? Will my mother’s petition be voided?

Thank you.

– LT

Dear LT,

If a person stays beyond their United States non-immigrant status, i.e., the time period they were allowed to remain in the country, they can face mandatory bars to returning to America. For instance, whenever you travel to America with a visitor’s visa, regardless of the validity period of your visa, the Customs and Border Protection (CBP) officer at the port of entry will grant you a certain period of time to remain in the country. If you remain beyond the date allotted, without an extension or a request for an extension – you have overstayed, accrued unlawful presence, and are deemed inadmissible.

If the period of overstay is 180 days but less that a year and the person leaves the United States, they are subject to a mandatory three-year bar. If the period of overstay is a year or more, the mandatory bar is 10 years. If you overstay for less than six months, you can still be barred from returning to America, but that would be at the discretion of either the CBP officer on your return or the US Embassy whenever you apply to renew your visa.

The mandatory bar to returning can be overcome with the grant of a waiver by US Citizenship & Immigration Services. You must have a qualifying relative – in this instance, a spouse or parent – and they must show that they would experience extreme hardship if you were not allowed to return to America.

In your case, either your mother or your US citizen spouse would be able to apply for the waiver. Anyone can have multiple applications for residency in the pipeline and proceed on whichever becomes available first.

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