I am a U.S. citizen. My daughter's father is from Brazil. We were never married. He came to the U.S. in the middle of 2005 on a visitor's visa. We had our daughter in the middle of 2008. He left the country a week later; so he overstayed his visa by more than 2.5 years. He worked under the table while he was here. He does not have any criminal history either here or in Brazil. I know that people who overstay their visas and want to return to the U.S. face a 10 year ban. Does the fact that the person has a child in the U.S. change this at all? If so, how and when can he return to the U.S.? Thank you very much for your assistance.
Your daughter's father will have a 10 year bar from returning to the U.S. because of his over stay. There is a waiver possible to allow a person to come back sooner, but the waiver is only available in connection with certain family petitions. If he was husband, you could petition for him and he could ask for the waiver, but you state that you were never married. When your daughter is 21, she will also be able to petition for him, but by that time, he will no longer need the waiver.
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He'll be able to return ten years after the date of the departure or if he obtains a waiver of the unlawful presence bar. His child may play a role in that but cannot file for him until she is 21 years of age. Nor is she a "qualifying relative" for the waiver which requires an "extreme hardship" on a U.S. citizen or LPR spouse or parent.
My colleagues are correct 10 year bar ... with a waiver possible ... if you two get married.
Obviously, you will need to go to Brazil for this to happen.
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