I have a question and hope you can point me in the right direction. My brother had some trouble with the law on drug charges in 1993 and plead guilty to a felony 3.

In 2004 he entered the United States and his green card was taken. He was supposed to return to court with the deposition from the case, but instead 'he went home'. Can he get married and refile, or can he go to the US Embassy and apply for a visiting visa, or what can we do to fix this problem?

Next question: if a mother is in the US for the last 10 years and her daughter is a US citizen, can she file for her without the mother having to return to Jamaica?

Thanks in advance.

A In order for your brother to determine what his immigration status is, he must request his immigration file from United States Citizenship and Immigration Services (USCIS). If he was required to go to Immigration Court to defend himself against removal (deportation) charges and he did not appear, the immigration judge would have ordered him deported in abstentia. Also, if he had an immigration attorney during the proceedings, he should request a copy of the attorney's file.

If he marries a US citizen, who is otherwise eligible to petition for him for a Green Card, he would find himself denied the Green Card at the time of the interview because of his felony drug conviction and his possible deportation. The conviction makes him inadmissible to the US. Depending on what section of the law he was charged with violating, he may or may not even be eligible for a waiver that would allow his return.

Make haste now

Your brother's felony drug conviction would certainly make him ineligible for a non-immigrant (visitor's) visa.

There may or may not be a way to fix your brother's problem but he must request a copy of his file from USCIS, or hire an attorney to request the file, and analyse the data to determine what his future chances are for returning to the US, if ever. The sooner he requests his file the better for him as there is no time frame within which USCIS has established to respond to someone who files a Freedom of Information Act Request for their immigration file.

No returning to jamaica

To answer your second question, if a person is in the US, pursuant to lawful entry, that is, they entered with a US visa issued in their name and entered in their own passport, they overstayed, and they have an adult (over 21) US-citizen child, they can be petitioned for them to adjust their status. That is the USC adult child can file to change the expired status of their parent to that of a permanent resident, without the parent returning to Jamaica. In fact, if a person who has been out of status in the US for six months to one year leaves the US, they cannot return for three years (without the petitioner being granted a hardship waiver). If the person has been out of status for one year or more and they leave the US, they cannot return for 10 years, without the grant of a waiver.

In order to file to adjust her status, the mother must have proof that she landed in the US (her I-94 card) in her own name. If she has lost the I-94 card she can file the appropriate form with USCIS to replace the card. The mother is considered an immediate relative and the filing should take approximately about six months before mother and child would be scheduled for an in-person interview at their local USCIS office.

Mother and daughter must make sure that they file all the correct documents and complete them accurately so that the file is not sent to Jamaica for consular processing. There are many Jamaicans who find themselves stuck in Jamaica because they overstayed in the US, were otherwise eligible to adjust their status, did not correctly complete their application forms, came home to 'pick up' their Green Cards and end up facing years of separation from their families in the US.

Dahlia A. Walker-Huntington, Esq., 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. Email info@walkerhuntington.com.