Life can be difficult for undocumented immigrants in the United States. The stakes are high. If you are caught, you will most likely be deported from the United States. However, it may also disintegrate a family, disrupt the family's finances, and result in harsher immigration penalties. There is no comprehensive amnesty program like the one President Reagan proposed in 1986, but there are a number of smaller programs that provide paths to legal status for certain undocumented immigrants.
The obvious goal for undocumented immigrants is a path to long-term legal status. These paths to legal status lead to permanent residence (green card) and US citizenship. Certain undocumented immigrants may have some options. This article discusses those options and who might be eligible for them.
In this article, the term "undocumented" immigrant refers to an immigrant who lacks legal immigration status. No status may be the result of entering the United States without inspection or entering on a legal non-immigrant visa (e.g., tourist visa, student visa) that has since expired. The term "entered without inspection," or EWI, refers to someone who has crossed the border but has never interacted with a U.S. border agent.
Although there are approximately 650,000 DACA recipients, this is not a legal immigration status. It is a temporary solution with extremely limited opportunities for the beneficiaries. DACA recipients, like any other undocumented person, require pathways to legal status. Although not everyone will be eligible for these paths, they are worth learning about:
- Green Card through Marriage to a U.S. Citizen or LPR
- DREAMers Green Card through Employment with LIFE Act Protection
- Asylum Status
- U Visa for Victims of Crime
Marriage to a U.S. Citizen or Permanent Resident grants permanent residence (Green Card).
One of the most common questions, and one of the most common paths to legal status, is how an undocumented immigrant is treated when he or she marries a U.S. citizen or lawful permanent resident.
Obtaining a green card for the immediate relatives of a US citizen may be a relatively simple process. In fact, a lawyer may not even be required. For everyone else, the procedure becomes more complicated. However, it may be a viable path to legal status.
Immediate Relative of a US Citizen
It's critical to understand that a U.S. citizen's immediate relatives only include the spouse, parent, or child (under age 21). If the immediate relative entered the United States lawfully, he or she may change status to permanent resident. In other words, the undocumented immediate relative may apply for a green card from within the United States. Legal entry is critical. The undocumented individual must have entered the United States with valid documentation and made face-to-face contact with a U.S. immigration officer, who must have acknowledged the person's entry into the country.
As a result, an individual who overstays a visa and then marries a US citizen may generally obtain a green card through adjustment of status. Whether the visa overstay was for six months or six years, the undocumented immediate relative can apply for a green card.
I-601A Provisional Waiver
Historically, the undocumented spouse and her or his own dependent children could gain permanent resident status through marriage to a U.S. citizen or permanent resident. However, the reality is that the immigration process is not always so simple. There are numerous issues that can become stumbling blocks for spouses and/or stepchildren of U.S. citizens and permanent residents as they consider applying for legal resident status. If the foreign spouse, children, or stepchildren entered the United States without inspection and stayed, they are required by law to leave the country and complete their immigration process through U.S. consulates abroad in order to obtain an immigrant visa (green card).
More importantly, if the immigrant spouse and/or children over the age of 18 have been unlawfully present in the United States for at least 180 days (6 months), they may be barred from re-entering the country for 3 to 10 years once they leave.
In many cases, these individuals can qualify for and apply for a waiver of the 3- and 10-year bars if they can demonstrate that their absence from the United States would cause "extreme and unusual hardship" to the U.S. citizen or lawful permanent resident spouse or parent. Previously, the waiver process required the individual to leave the United States and apply from his or her country of origin. This was a costly and uncertain process that still risked keeping families apart for lengthy periods of waiver approvals or, worse, waiver denials and full exposure to the 3- or 10-year bars.
Fortunately, that process is no longer in use.
A "provisional" waiver is now available, which can be applied for and obtained while the applicant is still in the United States. The provisional waiver gives individuals some assurance that, if approved, they will be able to return to the United States following a successful consular interview. The provisional waiver program applies to undocumented spouses and children of US citizens.
The program's goal is to keep families together. Family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships are examples of "extreme and unusual hardships."
Applicants should keep in mind that it must be a genuine (true) marriage to a US citizen, and that all previous marriages must have been lawfully terminated. Marriage fraud (fake marriage to obtain a green card) carries harsh penalties, including felony conviction for the US citizen.
Before submitting an application for a provisional waiver, prospective applicants should always consult with an experienced immigration attorney (Form I-601A, Application for Provisional Unlawful Presence Waiver). Although it may appear to be a simple process, these waivers are highly technical and necessitate careful and thorough legal analysis. Your answers on the application may have long-term consequences for your immigration case.
Green Card or Permanent Residence for DREAMers through Employment with LIFE Act Protection
In some cases, DREAMers who have had the opportunity to further their education become candidates for higher skilled jobs. In such a case, a high-skilled prospective employee's green card may be sponsored by a U.S. employer. Even if a DREAMer is protected under DACA, he or she may require 245(i) protection under the Legal Immigration Family Equity (LIFE) Act.
Many undocumented immigrants, particularly well-educated DREAMers, may have an employer willing to sponsor them for a green card. Prior to filing the prospective DREAMer's employment visa petition, the employer may be required to go through a process known as Labor Certification or PERM. However, even after such processes are successfully completed, the immigrant is still required to return to his or her home country due to his or her original unlawful entry or out of status condition. However, if the individual has 245(i) protection, he or she can complete the process in the United States and obtain a green card without leaving.
The LIFE Act is a law that allows undocumented immigrants to complete their green card process in the United States if an immigrant petition was filed on their or their parent's behalf on or before April 30, 2001. For example, if the DREAMer's U.S. citizen paternal uncle filed an immigrant petition or I-130 petition on behalf of the DREAMer's father by April 30, 2001, then not only the father but also the son or daughter may be covered by the LIFE Act's 245(i) provision.
This is a simplified version of the law, and many additional requirements must be met. If this scenario sounds like it could apply to you, speak with an experienced immigration attorney who can explain the details.
Asylum is available to anyone in the United States who has suffered persecution in his or her home country or who has a well-founded fear of persecution if he or she returns to that country. It is critical to understand that the persecution must be carried out by the government or by a group that the government is unwilling or unable to control.
Persecution is defined fairly clearly in US immigration law. Most importantly, the persecution must be motivated by one of the following five factors: race, religion, nationality, membership in a specific social group, or political opinion.
In general, eligibility for asylum requires:
You are in the United States (legally or illegally);
You are unable or unwilling to return to your home country due to past persecution or have a well-founded fear of future persecution if you do;
The reason for persecution is related to one of five factors: race, religion, nationality, membership in a particular social group, or political opinion; and You are not involved in an activity that would disqualify you from asylum.
To begin an asylum case, your lawyer must file Form I-589, Application for Asylum and Withholding of Removal, along with evidence supporting your claim. Typically, a screening interview is conducted to ensure that an applicant's case is justified. This is why it is critical to work with a reputable organization (non-profit or legal firm) that has experience with asylum cases.
One year after being granted asylum, asylees are eligible to apply for permanent resident status (green card). If the asylee's spouse and children were admitted to the US as asylees, they are also eligible to apply for a green card.
U Visas for Crime Victims
The Victims of Trafficking and Violence Prevention Act of 2000 established the U visa to protect non-citizens who have been victims of certain crimes and have assisted law enforcement. The law was enacted to encourage victims to cooperate with police and prosecutors without fear of deportation. In some cases, a U visa can provide legal status, employment authorization, and a path to permanent resident status (green card).
A U visa requires four qualifications:
The individual must have suffered substantial physical or mental abuse as a result of being a victim of a qualifying criminal activity; the individual must have information about that criminal activity; the criminal activity violated U.S. laws; and the individual must have been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime.
Criminal activities that qualify for a U visa include, but are not limited to:
- Sexual exploitation
- Domestic abuse
- False incarceration
- genital mutilation in women
- Felony assault
- Involuntary servitude (incest)
- Justice Obstruction
- Assault on a female
- Exploitation of women sexually
- The slave trade
- Torture \sTrafficking
- tampering with evidence
- Illegal criminal restraint
- Other related offenses
Nonimmigrant U visa
It is possible for family members (spouse and children) to be covered by the same U visa. Under certain conditions, family members who accompany the petitioner can obtain a U derivative visa. The U visa principal must petition on behalf of qualifying family members.
If you believe your situation warrants a U visa, consult with law enforcement and an immigration attorney. There are also numerous non-profit organizations that assist immigrant victims of crime. It is critical that you express your preferences early in the process.
Removal of Non-LPR
Certain undocumented individuals who have lived in the United States for a long time and have been placed in removal proceedings may have one last option for deportation defense. You may be able to obtain lawful status and a green card through Non-LPR Cancellation or Removal.
To be eligible for cancellation, you must meet all of the following requirements:
You have lived and been physically present in the United States for at least ten years; Your removal (deportation) from the United States would cause "exceptional and extremely unusual hardship" to your U.S. citizen or permanent resident spouse, child, or parent; You can demonstrate that you have had good moral character for the past ten years; and You have not been convicted of certain crimes or violated certain laws.
Unfortunately, you cannot sign up for this benefit on your own. It is only available to those facing deportation in immigration court. Meeting all of the requirements listed above is only the bare minimum. This law also establishes an annual limit of 4,000 green cards. In other words, many people meet all of the requirements but do not receive a cancellation of removal. It is critical to seek the advice of an immigration attorney who is familiar with deportation defense and establishing the merits of your hardship.
Even if none of the above paths to legal status apply to you, there are reasons to be optimistic. The 2020 Presidential election could bring about change. Immigration advocates and organizations are working hard to pass legislation that will provide relief to undocumented immigrants who are already in the United States and contributing to the economy.