When I discuss the U.S. immigration system with folks not familiar with our regulations and procedures, the conversation invariably turns into “Well, Carlos, so what needs to be fixed?”
I’m full of insights . . . insights derived from my 20+ plus practice as an immigration lawyer in Escondido and North San Diego County, as well as from the experiences of others.
For instance, this story about the immigration struggles of an upright family exemplifies the government’s pig-headed rigidness towards various policies – and away from a flexible approach to ensuring our stated ideal that family unity is bedrock of our immigration law.
It also demonstrates, contrary to several public accounts, not all immigrants who overstay temporary visas are intent on wreaking havoc inside the United States.
In 2011, a former member of the Royal Air Force in England, John Oliver, arrived in the U.S. with his wife on a 90 day visa to visit his son. His wife became seriously ill. Doctors warned her that her osteoporosis and liver problems were too severe to fly back.
Because she could not travel, they applied for permanent residency via their son’s family-based petitions. Their applications were denied.
When his wife passed away, having failed to win a green card, John moved back to England.
Now 89, he lives alone in a one-room assisted living facility in Jersey, England.
His son would like to bring John to the U.S. to take care of him as he grows less self-dependent.
Current immigration policies prevent this outcome.
John Oliver, 89, and his wife traveled to New Jersey to see their son in 2011 Betty fell badly ill and was told by US doctors not to travel back to the UK That meant they overstayed 90-day visa and John was barred for ten years However, the State Department has now granted him ‘humanitarian parole’ ‘What happened to us is not unique,’ said his son.
Oliver has instead been banned from spending his final days with his son Bradley in the United States.
He has been barred from returning to the United States for ten years – when he would be 99 – to live under the care of his son.
“If we had to do it all over again, we would have done nothing,” Bradley said. “They could have been like all the other illegal immigrants the country loses track of.”
“It’s heartbreaking we can’t provide anything for him unless we pack everything and leave the United States.”
John’s visa had been issued under the Visa Waiver program, which does not allow immigrants to adjust their immigration status during their visit, except in narrow circumstances.
Because John overstayed his visa, he is subject to another immigration rule limiting his ability to seek a green card under the regulations for processing his application through a U.S. consulate office abroad.
Having remained in the U.S. more than a year past his visa expiration date, he now has a 10 year bar.
This means, in short, he is prevented from returning until the 10 year period has passed.
Adding insult to injury, in order to qualify for a waiver of his overstay period, he would need to prove that his qualifying relative, a U.S. citizen spouse or parent, would suffer extreme hardship – a monumental barrier, in and of itself – due to his separation from them.
Since neither his spouse or parents are alive, nor were ever U.S. citizens, this course of action would preclude any hope for success.
His son does not count as a qualifying relative.
Like John, many immigrants believe they’re doing everything by the book, but still do it all wrong.
Unfortunately, as a green card and permanent resident lawyer, U.S. immigration law does not provide any exemptions for persons in John’s situation.
John’s case highlights shortcomings in four different components of our immigration system: (a) the Visa Waiver Program, (b) the rules governing adjustment of status, (3) the regulations pertaining to consular processing, and (d) the requirements for hardship waivers.
Does America need to fix its’ family unity, visa, and permanent residency rules?
I’d say so.
Update: Nearly a year after the publication of this article, Mr. Oliver was granted “humanitarian parole” to join his son, a status which must be renewed every two years.
Immigration News Curation By Carlos Batara