Immigration Corner | I overstayed. Can I get a student visa?

Dear Mrs Walker-Huntington,

Can a person who overstayed in the US then return to Jamaica, reapply to a US college for their GED?

Does that person stand any chance of obtaining a student visa?

M.C.

Dear M.C.,

There is a visa penalty for anyone who overstays their non-immigrant visa status in America and leaves without securing the correct waiver. The same applies to someone who entered the United States without a visa, remains without status and leaves without obtaining a waiver.

If someone remains in America without permission, they accumulate unlawful presence in the country. If that person is eligible to adjust their status to a permanent resident, the unlawful presence – i.e. the time they have remained in America without legal permission, does not prevent them from doing so. However, if that person leaves America, they trigger a mandatory bar to return. That length of the bar depends on how long the person was unlawfully present in America. If the unlawful presence was six months to a year, the bar is three years; if it was a year or more, the bar is 10 years.

A person can overcome the bar if they are granted an unlawful presence waiver while outside the United States.

For someone who is ineligible to adjust their status in America but can consular process their Green Card application – they should apply for a provisional waiver before leaving the United States to attend their Consular interview abroad. That provisional waiver, if granted – would waive the unlawful presence. If the person leaves without the provisional waiver, they will trigger the mandatory bar and either must apply for an unlawful presence waiver from abroad or wait outside the United States until the relevant period of the mandatory bar expires.

Persons who accrue unlawful presence and who do not qualify for a Green Card, if they leave the US and apply for any type of non-immigrant visa, they will also face the mandatory bar. If someone receives a non-immigrant visa it is because the Consular Officer made the decision that they would return home after a temporary stay in America. If a non-immigrant stays beyond the time they were allotted, they had better have a very good explanation as to why another Consular Officer should grant them another non-immigrant visa.

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