Life can be difficult for undocumented immigrants in the United States. It's about a lot. Getting caught means likely deportation from the United States. But it can also break up a family, disrupt the family's finances, and lead to more severe immigration penalties. There is currently no major amnesty program like President Reagan's 1986 program, but there are a number of smaller programs that offer certain undocumented immigrants avenues to legal status.
For undocumented immigrants, the clear goal is a path to long-term legal status. These avenues to legal status lead to permanent residency (green card) and US citizenship. Some routes may be available to certain unlawful immigrants. This article covers these options and who might qualify for them.
In this article, the term “undocumented immigrant” is used to describe an immigrant with no legal immigration status. No status may be the result of entering the United States without inspection or entry on a legal nonimmigrant visa that has expired (e.g. tourist visa, student visa). The term "entered without inspection" or EWI is used to specifically describe someone who has crossed the border and never interacted with a US border guard.
Although approximately 650,000 child arrivals are protected by the DACA program, it is not a legitimate immigration status. It is a temporary solution with extremely limited options for beneficiaries. DACA recipients, like any other undocumented person, need ways to obtain legal status. While not everyone will qualify for these trails, it is worth learning the following:
- Green Card through marriage to a US citizen or LPR
- DREAMers Green Card by dealing with LIFE Act Protection
- Asylum status
- U Visa for victims of crime
Permanent residence (green card) through marriage to a US citizen or permanent residence
One of the most common questions and avenues to legal status is the treatment of an immigrant without legal status if he or she marries a U.S. citizen or legal permanent resident.
For the immediate relatives of a U.S. citizen, getting a green card can be a fairly straightforward process. In fact, a lawyer may not even be necessary. For everyone else, the process becomes complicated. But it can be a viable route to legal status.
Immediate relative of a US citizen
It is important to understand that a U.S. citizen's immediate relative includes only their spouse, parent, or child (under the age of 21). Provided the immediate relative had legal entry into the United States, he or she can adapt the status to permanent residence. In other words, the undocumented immediate relative can apply for a green card within the United States. Legal entry is essential. The undocumented person must have entered the United States with valid documentation and had personal contact with a US immigration officer. This official confirmed the person's entry into the United States.
Therefore, a person who oversteps a visa and then marries a US citizen can generally get a green card by adjusting the status. It doesn't matter whether the visa overrun was only six months or six years. The undocumented immediate relative can apply for a green card.
RECOMMENDED: Marriage to an undocumented immigrant and the immigration hurdles
I-601A Provisional Waiver
Traditionally, the undocumented spouse and their own dependent children have always been able to achieve permanent resident status by marrying that U.S. citizen or permanent resident. However, the reality is that the immigration process is not always that simple. There are many problems that can create pitfalls for spouses and / or stepchildren of U.S. citizens and permanent residents when considering applying for legal residency. According to the law, foreign spouses and children or stepchildren who entered the US without inspection and stayed in the US must leave the country and complete their immigration process through US consulates overseas in order to receive the immigrant visa (green card). More importantly, if the immigrant spouse and / or children over 18 years of age lived illegally in the US for at least 180 days (6 months), they could be automatically banned from re-entering the US for 3 to 10 years once you leave USA
In many cases, these individuals can qualify and apply for a 3- and 10-year ban waiver if they can demonstrate that their absence from the United States causes “extreme and unusual hardship” for the US citizen or the lawfully permanent US resident spouse would mean parent. In the more recent past, the waiver process required the individual to first leave the United States and apply from their country of origin. This was a costly and very insecure process that still ran the risk of families being excluded from extended periods of approval of exemptions, or even worst of all, denials of exemptions and full exposure to the 3 or 10 year bars.
Fortunately, this process is a thing of the past.
A “temporary” waiver is now available and can be requested and applied for while the applicant is still in the US. The temporary waiver provides individuals with a level of assurance that they will be able to return to the U.S. following a successful consular interview following approval. The Temporary Waiver Program applies to spouses and undocumented children of U.S. citizens.
The aim of the preliminary renunciation program is to maintain family unity. "Extreme and Unusual Difficulties" may generally include family relationships in the United States and the country of deportation, conditions in the country of deportation, age of the US citizen or permanent resident spouse or parent, length of stay in the United States States, relevant medical and mental illnesses, financial difficulties and educational problems.
Applicants should remember that it must be a real (real) marriage to the US citizen and that all previous marriages must have been lawfully terminated. Marital fraud (a fake marriage to get a green card) results in harsh penalties that can even result in the conviction of the US citizen.
Prospective applicants should always speak with an experienced immigration attorney prior to applying for a Waiver (Form I-601A, Unlawful Presence Waiver Request). While this seems like a straightforward process, these exemptions are highly technical and require careful and thorough legal analysis. Your responses to the application could have long-term implications for your immigration case.
RECOMMENDED: Determine If You Need the I-601A Unlawful Presence Waiver
DREAMers Green Card or permanent residence through employment with LIFE Act Protection
There are certain situations in which DREAMers who have had the opportunity to receive higher education become candidates for higher skilled jobs. In such a scenario, US employers might be interested in sponsoring the green card for a highly qualified potential employee. Even if a DREAMer is protected by DACA, he or she may still need the benefits of 245 (i) protection under the Legal Immigration Family Equity (LIFE) Act.
There are many instances when undocumented immigrants, especially well-trained DREAMers, have an employer willing to sponsor him or her for a green card. In some cases, the employer must go through a process called a certificate of employment or PERM before submitting the application for a potential work visa for DREAMers. Even if such processes have been successfully completed, the immigrant must return to his home country due to his or her original illegal entry or out-of-status status. However, if the person has 245 (i) protection, they can complete the process in the United States and get a green card without leaving.
The LIFE Act is a law that allows undocumented immigrants to end their green card process in the United States if an immigration application was filed on or before April 30, 2001 on their behalf or on behalf of their parents. For example, if the US citizen of DREAMer's paternal uncle filed an immigration or I-130 application on behalf of DREAMer's father by April 30, 2001. Then not only the father but also the son or daughter can fall under the provision of the LIFE Act 245 (i).
This is a simplified representation of the law and many additional requirements must be met. If this scenario applies to your situation, contact an experienced immigration attorney who can explain the details to you.
Asylum status is available to anyone in the United States who has been persecuted in their home country or who has a reasonable fear of persecution should he or she return to that country. It is important to understand that the persecution must be carried out by the government or by a group that the government does not want or cannot control.
Persecution is pretty well defined in US immigration law. Most importantly, the persecution can be traced back to one of the following five groups: race, religion, nationality, belonging to a particular social group, or political opinion.
In general, eligibility for asylum requires the following:
- You are present in the United States (through legal or illegal entry).
- You cannot or do not want to return to your home country due to previous persecution or you have a well-founded fear of future persecution when you return.
- The reason for the persecution is related to one of five things: race, religion, nationality, belonging to a certain social group or political opinion; and
- You are not involved in any activity that would exclude you from asylum.
To begin an asylum case, your attorney must submit Form I-589, Asylum Application and Withdrawal, along with evidence of your claim. A screening interview is usually held to ensure that an applicant's case is justified. For this reason, it is very important to work with a reputable organization (non-profit or law firm) that has experience with asylum cases.
Asylum seekers can apply for permanent residence status (Green Card) one year after receiving the asylum grant. The spouse and children of the asylum can also apply for a green card if they have been accepted as asylum in the USA.
RECOMMENDED: Eligibility and advantages of asylum status
U Visa for victims of crime
In 2000, the Human Trafficking Victims and Violence Prevention Act introduced the U-Visa to protect non-citizens who have been victims of certain crimes and who have assisted law enforcement. The law was created to encourage victims to cooperate with police and prosecutors without fear of deportation. A U-Visa provides legal status, a work permit and, under certain circumstances, can also provide a path to permanent residence status (green card).
There are four admission requirements for a U-Visa:
- The individual must have suffered significant physical or mental abuse as a result of being a victim of a qualified criminal activity.
- The person must have information about this criminal activity;
- The criminal activity violated US law. and
- The person must have been helpful, is helpful, or is likely to be helpful in investigating or prosecuting the crime.
Qualified criminal activities for a U Visa include but are not limited to:
- Abusive sexual contact
- Domestic violence
- Wrong detention
- Female genital mutilation
- Criminal attack
- Involuntary bondage
- Obstruction of justice
- Sexual assault
- Sexual exploitation
- Slave trade
- Witness manipulation
- Unlawful criminal restraint
- Other related crimes
Please visit the USCIS U visa page for more information on qualified offenses.
The victim must have useful information related to the crime and be willing to cooperate with the police and officials investigating the case. The application for a U-Visa requires a certificate (Form I-918, Attachment B) from the law enforcement authorities. In some areas, people outside of law enforcement (e.g. judges or child protection services) may submit the certification statement.
It is possible that family members (spouse and children) are insured with the same U-Visa. Family members accompanying the petitioner may, under certain circumstances, obtain a U-derivative visa. The U-Visa issuer must apply on behalf of qualified family members.
If you believe your situation warrants a U Visa, speak to law enforcement officers and an immigration attorney. There are also many non-profit organizations that work with victims of immigrant crime. It is important that you make your wishes known early on.
Non-LPR cancellation of removal
A final defense against deportation may be available to certain undocumented individuals who have long lived in the United States and have been involved in deportation proceedings. You may be able to obtain legitimate status and a green card through non-LPR cancellation or removal.
To qualify for a cancellation, you must meet all of the following requirements:
- You have lived in the United States for at least 10 years and have a constant physical presence.
- If you were to be removed (deported) from the United States, it would cause "extraordinary and extremely unusual trouble" for your permanent resident or spouse, child or parent.
- They can show that you have had a good moral character over the past 10 years. and
- You have not been convicted of certain crimes or violated certain laws.
Unfortunately, you cannot proactively enroll for this benefit. It is only available to people who need to be deposed in an immigration court. The fulfillment of all of the above requirements is only the minimum criterion. According to this law, a maximum of 4,000 green cards are issued annually. In other words, there are many people who meet all the requirements but do not receive the cancellation of the removal. It is incredibly important to have the assistance of an immigration attorney who is experienced in defending deportation and who will assess the merits of your need.
Even if none of the above routes to legal status apply to you, there is reason to be optimistic. The 2020 presidential election could bring about change. Immigration advocates and organizations are pushing for legislative changes to provide relief to undocumented immigrants who are already in the US and making a positive contribution to the US economy.
About Ielts Science
Ielts Science provides a simple, inexpensive, step-by-step guide to USCIS immigration applications. Individuals, lawyers, and nonprofits use the service on their desktop or mobile device to accurately prepare immigration forms and avoid costly delays. Ielts Science allows users to try the service for free and offer a 100% money-back guarantee that USCIS will approve the application or petition. We support DACA Renewal Application (Form I-821D), Status Adjustment Application (Form I-485), and several other immigration packages.
If you think you might qualify for any of the four avenues to legal status outlined above, please contact an experienced immigration attorney who can help guide you through the process. Visit our page to find immigration lawyers in your area.
Notice to reader: This post was originally published on June 28, 2016 and has been changed with improvements.