Immigration Corner | Can I adjust my status if I overstayed my time?

Dear Mrs Walker-Huntington,

If someone (over 21 years old) overstayed his visitor’s visa, is it possible for his mother, who is an American citizen, to file for an adjustment of status for him?

– PC

Dear PC,

To be eligible for adjustment of status in the US, among other factors, a beneficiary must have been lawfully admitted or paroled into the US and have a visa immediately available. For example, persons who are immediate relatives of American citizens – spouses, parents and under 21-year-old children are eligible to adjust their status in America if they were inspected and admitted or paroled by US Customs and Border Protection.

In the scenario you presented, the person who is in the United States out of status must leave the US. He is ineligible to adjust his status with his mother’s petition because he is over 21 years old. However, when someone who is out of status in America leaves, they automatically trigger a mandatory bar to returning – three years if they overstayed six months to a year, and 10 years if they overstayed for a year or more. They are deemed to have accrued unlawful presence in America once their time to remain expired.

In your scenario, the immigrant would need to apply and be approved for a provisional waiver of the unlawful presence mandatory bar before leaving the US in order not to be separated from their family for the relevant mandatory period. If they left without the waiver, they could apply for the waiver outside the US, but they would be separated from their family during the period of processing which can take several years.

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 mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com