Can a deported individual return to the US if he finds out he has a child? 9 Answers as of February 06, 2012

Having a child in the US does not grant one permission to return after deportation. The fact is that he violated the law by overstaying and that does not change because of the new USC child. What he has to do is to apply for visa and file a waiver of condition of inadmissibility and see if USCIS will approve it and let him come to the US. That is pretty much the he would have had to do it prior to the child being born anyway. The only thing is that now he has an additional reason or a "positive equity" that may help him receive a favorable exercise of discretion by USCIS. The interesting thing is that it may sway them the other way as well.

That will not help him get back.

Your friend needs to consult with an immigration attorney to determine his history with immigration in the U.S. Various factors determine eligibility for visitor or other visa to re-enter the U.S. regardless of learning of a child in the U.S. In the meantime, he should contact the Hague Conventions organization - info should be available online to determine whether S. Africa is a signatory to the Hague Conventions whereby he has rights as a parent of a child in a different country and what rights/obligations he has regards to his child. Thank you.

If the deportation was involuntary, he won't be able to start any immigration process 10 years from the date he was deported. If the deportation was voluntary, however, he can seek a waiver.

People usually do not get deported just because their work visa expired so make sure your friend is in fact "deported". A deportation carries a minimum five year bar from returning to the US. They can apply for waiver when they apply for nonimmigrant visa.

People are not generally deported after a work visa runs out - you may want to double check the exact situation to be sure what happened, and determine if his visa expired and he left, or if he has an actual deportation from an immigration court. A US citizen child cannot petition for a parent until the child is 21. He may have other options to visit the child, but his immigration past will need to be clarified first.

Unfortunately, he would not be able to apply for any permanent legal status due to having a child. Immigration laws do not allow individuals to receive status through petitions filed by children until the son/daughter reaches 21 years of age. The other issue is your friend overstayed his prior visa and was deported, which mean he is inadmissible for a set number of years. There are special application and petitions to authorize re-entry sooner, but they require showing hardship to a qualifying relative, which does not include a minor.

The answer depends more on how long he overstayed his work visa than on his USC child. If he stayed in the U.S. longer than 180 days after the visa expired, then he triggered a 3 year bar to returning. If he stayed more than a year after the visa expired, then he has a 10 year bar to returning. His child wouldn't be able to petition for him to come to the U.S. as a legal resident until the child turns 21, and then it will be difficult because the child will have to prove a bona fide parent-child relationship with him. That's hard when the father doesn't have a chance to play an active role in his life. If he doesn't have a 3 or 10 year bar, then your friend could simply apply for a tourist visa and will have to show strong ties to his home country. Otherwise, the sad fact is that he may have to find a way for his child to travel to visit him instead.

Just having the child will not give him the right to return.