My son overstayed

MDear Mrs Walker-Huntington, y son came to the United States (US) in 2014 and overstayed his visitor’s visa. He was 15 years old. He was registered in, and attended, high school. He’s now 19 years old and in college.

His father is a green-card holder and is living in the US. Is it possible for his father to file for him and adjust his status without him having to go back to Jamaica? If not, what else can be done for him?

His father got his green card through his wife, who is also a green- card holder. Her son, who is a US citizen, petitioned for them. I’m not sure how long it will take her to get her citizenship since she migrated last year. I think that by then my child will be over 21.

Dear AN,

Your son is in a situation similar to some of the so-called ‘Dreamers’, i.e., he arrived in the States as a minor (under 18 years of age), is now illegally in the country, over 18, and is out of status.

A green-card holder cannot adjust the status of any relative who is out of status – only a US citizen, immediate relative can do that. Currently, immediate relatives of US citizens are spouses, parents and sons/daughters under 21 years of age. If your son’s father and his wife migrated in 2017 as a result of the wife’s US citizen son’s petition, they will have to wait five years to apply for their own US citizenship, and you are correct – by that time your son will be over 21 years old.

This situation is a stark reminder why it is never a good idea to allow children to remain in the US without status if there is no clear path to legalisation. Had your son remained in Jamaica or left the US before he was 18 years old, his green-card holder father could have filed a petition for his US residency. Your son would be in the F2A preference category as the under-21-year-old child of a permanent resident; and it is currently taking two years for those children to receive a green card.

10-YEAR BAN

While his father can file for residency for your son, he would have to leave the US in order to consular process his green card, and the moment he leaves the States, he would trigger a 10-year bar to returning. He would be deemed to have accrued unlawful presence in the US of more than one year. (Persons under age 18 do not accrue unlawful presence.)

The unlawful presence bar can be overcome by a waiver – his father would have to demonstrate that he is experiencing extreme hardship in America without him and why he could not return to live with him in Jamaica. A waiver is a complicated legal argument and there is no guarantee that the waiver would be granted.

At this time, the only two solutions that your son has is to leave the US or to marry a US citizen and adjust his status. He does not currently qualify for the Deferred Action for Childhood Arrivals (DACA), but it is left to be seen what, if any, relief for young people such as your son that might be a part of any legislation that comes out of the US Congress or from the current administration this year.

Dahlia A. Walker-Huntington is a JamaicanAmerican attorney who practises immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com