Hi Mrs Huntington,

I recently got married in October and my husband is a US citizen. The papers were filed in New York where we reside.

How long before I get my work permit?

Would I have to return to Barbados to collect my documents?

Can I still travel on my 'Bajan' passport while awaiting my green card?

A.D.

Dear AD,

Congratulations on your marriage! You did not say in what status you arrived in New York.

If you arrived legally as a non-immigrant and married a US citizen, you are eligible to adjust your status, i.e., remain in the country and attend an interview for permanent residency. Included in the adjustment-of-status package is an application for work authorisation (work permit). It normally takes 90 days for the work permit to arrive. Upon receipt of the work authorisation, you can apply for a social-security card and proceed to legally work or attend school.

The receipt notices from the adjustment-of-status package can be used to obtain a driver's licence which is a valid as identification.

Relative petition

Once you entered the US legally, you are permitted to adjust your status with the appropriate relative petition - in your case a US citizen spouse. If you filed to adjust your status, you must not leave the country without permission and then if, and only if, you filed the adjustment of status before the length of time you were given at the airport has expired. If you leave the US while the application is pending, it will be considered abandoned.

If you applied to adjust your status before your time to stay in the US expired, you can apply for advance parole (AP). This allows you to legally leave and return. It is important to note that you apply for advance parole at your own risk. If the United States Citizenship and Immigration Services (USCIS) granted you advance parole - permission to leave the country while your application is pending - in error, and you are denied entry when you try to re-enter the US on the AP, you will have no recourse.

If you filed to adjust your status after the time you were given to stay expired, you are not eligible for AP.

Adjust your status

Conversely, if you were not in the US legally as a non-immigrant, you will not be able to adjust your status to a permanent resident - even if you marry an American citizen. Your husband would only be able to file a petition for alien relative and, once approved, you would move to consular processing, i.e., continue to an immigrant visa interview.

Your big problem with that scenario is that if you remained in the US in unlawful status for six months and you go to Barbados for your immigrant visa interview, your application will be denied and you will not be able to return to the US for a mandatory period of three years. If you were in the US unlawfully for a period of a year or more, you would face a mandatory 10-year bar to return. There is a waiver of inadmissibility available to persons who overstayed and left the country before regularising their status. The waiver is an 'extreme hardship' waiver that is available to your US citizen spouse if he can prove that your absence from the United States causes him "extreme hardship".

'Extreme hardship'

I emphasise 'extreme hardship' because, to qualify for the waiver, your US citizen husband will have to document the hardship he would claim. Being separated from one's spouse, missing them, having financial difficulties and just wanting to have your family together is not enough to establish extreme hardship. Each claim of hardship is handled on a case by case basis, but well-documented medical, behavioural, psychological, financial and or educational hardships must be produced.

Additionally, if you entered the US legally and overstayed the time you received at the airport upon arrival and leave to Barbados for your residency interview, you will also face the mandatory bars to returning (three or ten years). Be sure of which category applies in your case before you act, as there are many families who are separated because they did not seek counsel with an attorney and filed the incorrect documents.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices 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. Email info@walkerhuntington.com or editor@gleanerjm.com.