by Christina Murdoch

Non-citizens who entered the United States without presenting themselves at an official port of entry for inspection by an immigration official face a difficult task in obtaining lawful status within the United States.  They often think that they will be able to “fix” their status and remain in the United States lawfully if they marry a U.S. citizen, have a U.S. citizen child, or find an employer willing to sponsor them for a green card.  But this is often not the case.  In almost all instances, people who enter without inspection cannot receive lawful permanent residency without first leaving the United States.  While technically they 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 to them as well.  This is because almost all people who enter without inspection have spent considerable time in the United States without status before they find a relative or employer who is able to sponsor them for residency.  Therefore, when they leave the country to apply for their visa, they usually trigger a ten-year bar on returning to the United States.

Some people who enter the United States without inspection believe that an “amnesty” law will allow them to obtain lawful permanent residency if they have been in the United States for a long time or have U.S. citizen relatives.  But this is also untrue.  The last time the United States Congress passed an “amnesty” provision was in 1986, and most people eligible for benefits under that law have already taken advantage of it and become permanent residents by now.

Nonetheless, people who enter without inspection do have a few options.  They are not easy options, and 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 two of the most common.

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.

There are a few other requirements.  The application or petition must have been able to be approved when filed.  This means that a person may not benefit from a petition seeking a visa classification for which he or she was clearly ineligible at the time.  In addition, if the petition or application was filed after January 14, 1998 then the beneficiary must show that he or she was present in the United States on December 21, 2000.  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.  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.

Consular Processing for an Immigrant Visa with an I-601 Waiver

The other principal option for people who enter without inspection is to leave the United States and apply for a visa at a U.S. consulate abroad while at the same time applying for a waiver of the ten-year bar, known as an I-601 waiver.  Only certain people will meet even the minimum requirement for receiving an I-601 waiver: having a U.S. citizen or lawful permanent resident spouse or parent.  U.S. citizen or lawful permanent resident children are not sufficient.  Even if a person has such a relative, he or she still must establish that the relative will suffer extreme hardship if he or she cannot immigrate.  The immigration service determines whether extreme hardship exists by looking at a wide range of facts, including medical or emotional problems of the waiver applicant’s relative, particularly problems that could not be effectively treated in the applicant’s home country; the relative’s family ties to the United States 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 fact that the applicant’s relative would have to move to an unfamiliar country or face separation from his or her spouse or child does not by itself establish extreme hardship.

Pursuing this option is difficult and risky.  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.  Furthermore, because the standard for granting an I-601 waiver is based on so many different facts, it is impossible to predict with certainty whether the waiver will be granted.  If it is not granted, the applicant must live in his or her home country for many years before being able to apply for a U.S. visa again.  In spite of these issues, for people who have no other way of obtaining lawful status in the United States and who can make a strong showing of hardship, this option is often worth the risk.

Scott D. Pollock & Associates, P.C. has extensive experience assisting immigrants in applying for § 245(i) adjustment, I-601 waivers, and cancellation of removal.  For more information or to schedule a consultation, please contact us at (312) 444-1940.

© 2011 Scott D. Pollock & Associates, P.C.

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