How can I get a waiver for this five-year ban?

Dear Mrs Walker-Huntington,

I AM a Jamaican and I worked in the United States on a J-1 visa for five years. In the final year, I was introduced to my partner and we fell in love. My J-1 visa expired in 2019 and I was required to take a two-year break from work in the US, and so I returned to Jamaica.

I went back to the US on my B1/B2 visa for a two-week vacation to spend time with my partner. I spent two months with her. I did not work, and came home in August 2019. In August 2020, I booked a surprise trip to the US on my B1/B2 visa. When I arrived in Atlanta, Georgia, I was stopped at Customs, my phone was taken and searched, and I was questioned. My carry-on, my purse, and my cell phone were confiscated and inspected while I was in isolation at the airport. This lasted about three hours or more and involve going back and forth with the same questions. My partner was contacted and interviewed about my arrival, including several questions about finances and any potential work for me. She informed the officer that I would not be working, and that I would be fully supported and taken care of. They also asked me if I had money and I told them I had my card. I was denied entry and accused of lying about going to work in the US. I was labelled inadmissible, and my travel visa was suspended for five years. I was sent back to Jamaica the next morning. I do not feel as though this is fair, for I have not done anything wrong, and I followed all the rules. I am hoping you have some advice as to how I can get a waiver for the five years and how I can see my partner, who is a citizen of the United States. It’s very hard for her to get time off from work, and it has been more than a year since we last saw each other. Thank you.

– Name Withheld

Dear Writer,

Everyone with a non-immigrant US visa has permission to legally arrive at a port of entry and request permission of the Customs and Border Protection officer to be admitted into the United States. The customs officer is well within his/her right to question the traveller about a myriad of issues and to deny the person entry to the United States. The most common for a person who has spent a significant amount of time in America is, their motive for their trip and whether they worked during an extended stay. The customs officer’s job is to decide whether the intending non-immigrant will abide by the terms of their visa.

They sometimes get the decision wrong. You have stated your reasons for your trip, and that your partner was called and supported your position; but your visa was still cancelled, and you returned to Jamaica. The bar for the inadmissibility is five years, but when that five years expire, you will have to apply for a new visa and convince the consular officer at the embassy in Kingston that you intend to make a brief visit and return home. What you did not state in your email is whether you are currently employed in Jamaica, and what ties you have to Jamaica that would have ensured the customs officer that your visit would be one for pleasure; that you would have returned home; and that you would not have worked during your visit. If you are unemployed in Jamaica, that would have gone against your admission to the United States.

If you want to apply for a non-immigrant visa before the five years, you need to apply in conjunction with two waivers – a waiver of the officer’s determination that you are inadmissible, and of the five-year ban. In the meantime, if your partner wants to see you, I suggest that she visits you in Jamaica. If you have plans to marry, you would need to find a third country that recognises same-sex marriage, or she would have to apply for a fiancé visa for you to return to America and marry her within 90 days of arrival. I recommend that you consult with an immigration attorney to go over your specific situation in detail.

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