Immigration | Can a parent who entered EWI pick up papers in the US?

Good afternoon Mrs Walker-Huntington.

I am just seeking some advice. A parent came to America on someone else’s papers over 20 years now. The children would now like to file for them, without having the parent return to Jamaica. Is this filing possible?

M.R.

Dear M.R.:

There are two major issues in this scenario:

1. Entering the US on false documents is immigration fraud, and

2. Having no entry in your name is tantamount to entry without inspection and you would not be able to remain in the US to adjust your status.

The first issue of immigration fraud requires a waiver of the fraud before an immigrant visa can be issued. This waiver must be applied for by the petitioner – the person filing an immigrant petition. Only certain petitioners can apply for a fraud waiver, and a son/daughter is not one of the relatives who qualifies to apply for a waiver. Only a spouse or a parent qualifies as a relative to whom extreme hardship attaches for purposes of an immigrant fraud waiver.

The second issue is entry without inspection (EWI) because the immigrant did not make a lawful entry into the United States. In this scenario, the intending immigrant must leave the US to consular process in their home country. Once the intending immigrant leaves the US, it triggers an unlawful presence bar of three to 10 years, depending on how long the immigrant was unlawfully present in America. There is a provisional waiver available to persons in this situation – where they would first be approved for the provisional waiver in America before continuing the process of applying for the Green Card overseas.

Even if you have been approved for a provisional waiver (waives unlawful presence), at the US Embassy in your home country other issues could prevent the issuance of the Green Card. This is where the fraud would bar someone who is filed for by a son/daughter and who could not secure a fraud waiver from obtaining US residency and being allowed to return to the US.

This is a multi-layered situation that needs an immigration lawyer to peel apart and explain the details to the family and for them to make an informed decision. The wrong move could result in a permanent bar to return to America without the qualifying waiver.

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