Dear Ms Walker-Huntington:

I have a friend who came to America illegally in 1996, using someone else's passport. She has since returned the passport to the owner.

I know a guy who really likes her and is a native-born American citizen. She has not made him aware of her situation, fearing he might think she's interested in using him.

For her to get a passport, she will have to go to the New York consulate and apply in person. She has to explain how she came to America, and this she fears greatly. I am unsure the Jamaican consulate would call immigration on her but she's unwilling to take that chance. She attended high school for four years, using her correct name, and now attends college but has to foot the bill, having no papers. She has no documents at all.

Is there anything that her boyfriend can do for her to get her legal? Will she become a permanent resident if he marries and files for her?

- K.J.

Dear K.J.,

I am unsure if your friend went to America illegally on a US or a Jamaican passport.

If she arrived on a US passport, she could face charges of false claim to US citizenship, which is a federal felony. If convicted, she could face a federal prison sentence and a permanent bar to returning.

If she travelled on a Jamaican passport with a United States visa, she could face immigration fraud charges if apprehended by the Department of Homeland Security. If she has the right familial ties, she might be eligible for a waiver of the fraud.

10-year bar

Her problem is quite complex at this stage. She entered the US without inspection, (EWI). A person is considered to be EWI, meaning they entered the United States without being paroled or admitted by a US Customs and Border Protection officer, or without documents in their name. The law changed after April 30, 2001 negatively impacting your friend. Prior to the changes in the law, illegal immigrants with photo-switched passports, or even walked across the border into the US, if they were an immediate relative of a citizen they could pay a US$1,000 fine and be allowed to adjust their status in the country. After April 30, 2001, this law no longer existed and a person, such as your friend, cannot, through marriage to a citizen, adjust their status to a permanent resident while in the US.

If your friend marries a US citizen she would have to return to Jamaica to do consular processing and have an interview for her green card. The situation is further complicated in that if she leaves the US at this stage, she will face a mandatory 10-year bar to return. That 10-year bar could only be overcome if she and her husband were to obtain a hardship waiver from US Citizenship and Immigration Services - if the husband demonstrates extreme hardship to himself.

Petition for residency

It would be important to know if your friend ever filed a petition for residency prior to April 30, 2001, even if she did not complete the filing. If she did, she might be able to use that prior approvable petition in the case of a current spouse. She should seek the advice of an experienced immigration attorney to help her.

If she cannot be helped in the short term, she will have to hope the US government institutes some form of legalisation plan to help her and the 12-15 million other undocumented aliens in the US.

Your friend should have no concerns about going to the Jamaican Consul General in New York to obtain a current Jamaican passport. The Consul General is the Jamaican Government's representative in New York and is there to render assistance to all Jamaican nationals who need a passport.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate and personal-injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com.