OVERSTAYING, Will it hamper his filing?

Dear Mrs Walker Huntington,

I am a regular reader of your column on Tuesdays in The Gleaner and have seen where you have given excellent and legal advice to many persons with various concerns.

I am now seeking legal advice with this situation. I have an aunt living in the United States who got her temporary green card in July 2010 through marriage. Her green card will, however, expire in 2012.

She is planning to file for her 23-year-old son, who is also living in the United States. He has overstayed his visiting visa.

My question is, should she go ahead and file for her son now, or should she wait until she gets her permanent residency?

I anticipate your kind response.

Sincerely,

S.L.

Dear S.L.:

Thank you for your kind comments.

Unfortunately, your aunt will not be able to assist her son to gain permanent residency. Although a permanent resident (green-card holder) can file for residency for an unmarried, adult son, they are unable to do so while the son is in the United States out of status.

To be able to do that requires that the Immigration & Nationality Act, Section 245i would have to be in force. As of April 30, 2001, Section 245i was revoked and prevents certain persons from being able to remain in the United States and collect their green cards.

On the other hand, if your aunt's son were in Jamaica, his mother could go ahead and file a petition for permanent residency for him. That process would take approximately eight years as the adult, unmarried child of a permanent resident.

The problem your cousin faces now is that since he has overstayed his visa, if he leaves the United States before regularising his status, he is going to face a mandatory bar to returning. If he has overstayed his visa for six months or more, he will face a mandatory three-year bar to returning to the United States. If he overstayed for a year or more, he faces a mandatory 10-year bar. The mandatory bars can only be overcome if his mother can prove extreme hardship to herself and qualifies for a waiver of inadmissibility.

The fact that your cousin is in the United States illegally leaves him with very little options. At this stage, the only way he can remain in the United States legally is if he falls in love and marries a United States citizen, or if he had an over-21-year-old American citizen child who could file a petition for permanent residency for him.

It is clearly not advisable for persons who travel to the United States on non-immigrant visas to overstay without a clear path to permanent residency.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com.