Are There Options for Those Who are “Undocumented”? If You Do Not Have Legal Status in the United States?
Those of you who are citizens of another country who entered the United States without presenting yourself at an official port of entry for “inspection” or questioning by an immigration official face a difficult task in obtaining lawful status within the United States.
If you entered the United States illegally there are a few things you should know:
1. Marrying a U.S. citizen or permanent resident does not guarantee that you will get a green card.
2. Having an employer who is willing to sponsor you does not guarantee that you get a green card.
3. The sponsorship of a family member –even a brother, sister, or parent – who is a permanent resident or citizen, does not guarantee that you get a green card. It will only allow you in certain limited circumstances discussed below.
4. Under the current law, it generally does not matter how long you have been in the country, if you entered illegally. There is a very limited exception, called “Cancellation of Removal” for immigrants who have been in the United States for more than ten years and for whom deportation would create “exceptional and extremely unusual hardship” to a
citizen or LPR spouse. This kind of request is only handled by a judge in immigration court.
5. If you entered the country illegally, be very careful if a lawyer, “notario” or other person who says that they can help fix your immigration status if you pay them. Unless you fit into one of the narrow exceptions described here, no lawyer can help you get a green card or become a citizen if you entered the country illegally. These people may be trying to take your money even though there is nothing they can do to help you and they may actually get you deported, shortly after getting you employment authorization.
6. Unless you fit under one of the exceptions which are discussed below, you need to return to your country of citizenship and try to re-enter the United States legally. While technically you are not barred from leaving the United States and applying for an immigrant visa at a U.S. Consulate abroad, in practice this route to permanent residency is often barred as well if you have spent more than six months in the United States without status before finding a relative or employer who is able to sponsor you for residency. Therefore, when you leave the country to apply for a visa, you will trigger a ten-year bar and will not be allowed to return to the United States for ten years.
People who enter without inspection do have a few options.
They are not open to everyone, but they do allow some people to get lawful permanent residency so they can continue their lives in the United States.
Here are some exceptions to the general rule that you cannot apply for Residency:
1. Adjustment of Status under 245(i)
Section 245(i) of the Immigration and Nationality Act permits a select group of people who entered without inspection to adjust their status to permanent resident without
leaving. In order to benefit, a relative or an employer must have filed an immigrant visa petition, also known as a Form I-130 or Form I-140, for them on or before April 30, 2001.
People whose employers filed an application for labor certification (a document required to apply for most employment-based immigrant visas) by the same deadline also benefit. So do people who were derivatives (the spouse or minor, unmarried child) of someone for whom an immigrant visa petition was filed by deadline. Therefore, people with a parent for whom an immigrant visa petition was filed on or before April 30, 2001 may be eligible for relief under 245(i) if they were under 21 and unmarried when the petition was filed. Applicants for § 245(i) adjustment must pay a $1,000 penalty fee in addition to the normal filing fees for an adjustment application.
Applicants do not have to use the petition or application which qualifies them for relief under § 245(i) to adjust under § 245(i). They also do not have to show that the petition or application is still valid. Even if it was your former spouse or a now-deceased parent who filed for you, you may still be able to use their petition to qualify under 245(i), as long as
you also have a new petitioner for your immigration case. Someone whose U.S. citizen sibling petitioned for him before April 30, 2001 and who then marries a U.S. citizen can adjust under § 245(i) based on his marriage even though the petition which qualifies him for § 245(i) adjustment is the petition filed by his sibling, not his spouse. Similarly, a derivative beneficiary on a petition filed for her parent before April 30, 2001 who then marries a U.S. citizen is eligible for § 245(i) adjustment based on her marriage even though she is now ineligible to immigrate as a derivative on her parent’s petition due to her marriage.
Another possible way to obtain Permanent Residency:
2. Parole in Place: If you Are the Spouse, Son or Daughter of a Military Veteran or Serviceman/woman.
This option has been available to the spouses and children of a serviceman who was being deployed overseas, but in November 2013, it was expanded to include the spouses, parents, and children of US military veterans. This opens up this option for many many more people. With Parole in Place, you must present evidence of your relationship to a military serviceman or woman, or to a veteran of military service, along with proof of your reasons why they should exercise their discretion to approve your case, and USCIS will issue a new entry document that replaces your undocumented entry that is barring you from lawful status. Once you are given your Parole in Place entry document, you will be eligible to apply for Permanent Residency in the same manner that everyone else does.
Another new option:
3. Consular Processing for an Immigrant Visa with a Provisional I-601A Waiver
The other improved new option for people who are married to United States citizens, but who have entered without inspection is to leave the United States and apply for a visa at a U.S. consulate abroad after applying for and getting the approval of a waiver (also called a pardon) of the ten-year bar, known as an I-601A waiver. The new part of this procedure is that you can apply for the waiver and get it approved before departing the United States. If it is not approved, you do not have to leave. If it is approved, you will only have to remain in your home country for a very short period of time.
Only certain people will meet even the minimum requirement for receiving an I-601A waiver: having a U.S. citizen spouse or parent. U.S. citizen children or a lawful permanent resident spouse or children are not sufficient.
If a person has such a relative, he or she still must establish that the qualifying relative will suffer “extreme hardship” if you cannot immigrate. The immigration service determines whether extreme hardship exists by looking at a wide range of facts, including your spouse or parent’s ties to the U.S., emotional suffering upon separation, medical or other problems of the waiver applicant’s relative, the conditions in the home country; and his or her lack of similar ties in the applicant’s home country; the relative’s employment and educational prospects in the applicant’s home country; the relative’s knowledge of or ability to learn the native language of the applicant’s home country; and severe financial hardship. The applicant’s relative would have to show also that a move to applicant’s home country would
also create extreme hardship.
To successfully apply for an I-601 waiver, applicants must extensively document hardship to their relative. A simple statement by the applicant and his or her relative is not enough. Nor is merely filling out and turning in the I-601 application form. Our office handles a substantial amount of these kinds of cases.
4. Matter of Quilantan Entry when you are considered to be lawfully inspected by being waved through at the border by an officer
Another possibility that affects more people that you may think, is the fact that you have a lawful entry to the United States if you presented yourself at a border crossing inspection site, and the officer did not speak to you but allowed you to enter the United States, even though you actually did not have a visa to enter.
A noncitizen has been legally admitted if he or she is “waved” through at a port of entry without being asked any questions.
A noncitizen who physically presents him or herself for inspection, makes no false claim to
U.S. citizenship, and is permitted to enter the United States, has been inspected and admitted, even if the inspecting officer asks no questions. Such an individual has not made an entry without inspection (EWI). Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). Matter of Quilantan, Int. Dec. 3688, 25 I&N Dec. 285 (BIA 2010).
If you can prove this through your own factual testimony and if possible, other witnesses, and other evidence, youwill be able to move forward with an adjustment of status to Permanent Residency, if your Immediate Family member petitions for you. This would eliminate the "unlawful entry" charge and replace it with a "lawful entry."
And lawful status for those who are victims of crimes or domestic abuse:
5. Battered Spouse – U nonimmigrant status or VAWA Permanent Residency Application
a. The U nonimmigrant status is a non-immigrant, temporary visa status which allows a
non-United States citizen crime victim, who has suffered substantial physical
or mental abuse resulting from certain forms of criminal activity and who
cooperates in the investigation or prosecution of the criminal activity, to
remain in the United States for up to four years. Possession of U nonimmigrant status means that the person is legally in the US and therefore is able to apply for a Social Security number, a driver's license and employment authorization. After 3 years the U status holder can apply for Permanent Residency. A person can ask for this status despite the fact that they entered the United States without a visa.
b. Violence Against Women Act -Domestic violence, terrifying for anyone, presents special dilemmas for immigrants who lack legal residency status in the U.S. For this
reason, VAWA was passed to assist in protecting those who are subjected to
abuse at the hands of their US citizen or US Resident spouse. Permanent Residency is granted to you if you qualify. The requirements are the following:
i. You are the spouse or child (under 21) of a U.S. citizen (USC) or a lawful Permanent Resident (LPR)
ii. If couple are divorced, wife/child can still file within 2 years after divorce
became final, provided divorce was related to the abuse (but need not be sought or granted on grounds of physical or mental cruelty)
iii. Your marriage was valid and made in good faith
You must have married intending to establish
married life together, not for sole purpose of gaining legal immigration status
iv. Must have terminated own prior marriage before marrying abusive spouse
v. You were battered and/or subjected to extreme cruelty by your US citizen or US Resident spouse or parent;
vi. You have resided with your abuser either in US or somewhere else, and you currently reside in the U.S.
The information contained in this website is for informational purposes only and is not legal advice or counsel specific to your case. You must contact our office if you wish representation and a consultation to determine whether any of these options are available to your specific circumstances.