For undocumented immigrants in the United States, life can be difficult, and the stakes are higher than ever. President Trump has threatened mass deportations, heightening fear and uncertainty within immigrant communities. Getting caught often means removal (deportation) from the United States, which can break apart families, disrupt finances, and result in harsher immigration penalties. While there is no extensive amnesty program like President Reagan introduced in 1986, there are still a variety of laws and smaller programs that offer paths to legal status for certain undocumented immigrants. Although not everyone will qualify, these options are worth exploring and understanding.
What is "Undocumented?"
Potential Paths to Legal Status for Undocumented Immigrants:
- Green Card for Immediate Relatives After Visa Overstay
- Provisional Unlawful Presence Waiver: A Path to Legal Status
- Adjustment of Status under Section 245(i) of the LIFE Act
- Military Parole in Place for Family Members of U.S. Service Members
- Seeking Asylum: A Path to Legal Status in the U.S.
- U Visa: A Path to Legal Status for Crime Victims
- Green Card through Registry for Long-Term Residents
Undocumented Explained
In this article, the term “undocumented” immigrant is used to describe an immigrant without any legal immigration status. No status maybe the result of entering the United States without inspection or entering via a valid nonimmigrant visa (e.g. tourist visa, student visa) that has since expired. The term “entered without inspection” or EWI is used to specifically describe someone who has come across the border and never interacted with a U.S. border agent.
Although there are approximately 650,000 childhood arrivals protected by the DACA program, it is not a lawful immigration status. It is a temporary solution and provides extremely limited opportunities for beneficiaries. DACA recipients need paths to legal status like any other undocumented individual.
For undocumented immigrants, the clear goal is a path to a long-term lawful immigration status. These paths to legal status generally lead to permanent residence (green card) and U.S. citizenship. This article covers some of the options and who could qualify for them.
Green Card for Immediate Relatives After Visa Overstay
Navigating the path to legal status in the United States can be complex, especially for individuals who have overstayed their visas. However, immediate relatives of U.S. citizens — spouses, unmarried children under 21, and parents — may have viable options to adjust their status to permanent resident (green card) without leaving the country.
Understanding Visa Overstay and Its Implications
A visa overstay occurs when a non-citizen remains in the U.S. beyond their authorized period of stay. Generally, overstaying can lead to penalties, including bars on reentry. However, U.S. immigration law provides certain exemptions for immediate relatives of U.S. citizens, allowing them to adjust their status despite an overstay.
Eligibility Criteria for Adjustment of Status
To be eligible for adjustment of status after a visa overstay as an immediate relative, the following conditions must typically be met:
- Lawful Entry: The applicant must have been inspected and admitted or paroled into the United States. This means they entered the U.S. through a recognized port of entry with proper documentation;
- Immediate Relative Status: The applicant must be the spouse, unmarried child under 21, or parent (if the U.S. citizen child is 21 or older) of a U.S. citizen; and
- Admissibility: The applicant must not be inadmissible to the U.S. on other grounds, such as certain criminal convictions or security concerns.
Considerations and Potential Challenges
While immediate relatives are exempt from certain bars to adjustment, such as unauthorized employment or an overstay, other factors can complicate the process:
- Unlawful Entry: Individuals who entered the U.S. without inspection (i.e., unlawfully) are generally ineligible for adjustment of status and may need to explore alternative options, such as consular processing with a provisional waiver.
- Criminal History: Certain criminal offenses can render an applicant inadmissible, necessitating a waiver or resulting in ineligibility.
- Prior Immigration Violations: Previous immigration violations may impact eligibility and should be carefully reviewed.
Application Process
Eligible individuals can apply for a green card by submitting an adjustment of status application package to U.S. Citizenship and Immigration Services (USCIS) that generally includes:
- Forms I-485, I-130, I-864, and I-693: Family-based applications generally require the application to adjust status, immigrant visa petition and affidavit of support. Exact forms will vary based on relationship type and other factors. A medical exam is mandatory for most applicants, and other forms may be submitted concurrently to request employment authorization and advance parole travel.
- Supporting Documents: Provide evidence of the familial relationship, proof of lawful entry (e.g., Form I-94), and documentation demonstrating the applicant's admissibility.
CitizenPath simplifies the adjustment of status process with easy, step-by-step guidance to prepare an Adjustment of Status Application Package accurately. Our online platform ensures error-free preparation, provides helpful tips, and generates customized filing instructions. Save time, reduce stress, and confidently apply for your green card with CitizenPath’s affordable, user-friendly support.
Provisional Unlawful Presence Waiver: A Path to Legal Status
Unlawful presence is a significant barrier for many undocumented immigrants who have a path to legal status through a close relative. The Provisional Unlawful Presence Waiver, commonly known as the I-601A waiver, offers a potential solution for eligible family members who entered unlawfully or overstayed and don't have the immediate relative relationship.
Understanding Unlawful Presence and Its Consequences
Unlawful presence accrues when an individual remains in the U.S. without authorization. Unlawful presence may be due to entering the U.S. without inspection or overstaying a visa. Departing the country after accumulating unlawful presence can trigger reentry bans:
- 3-year ban: For those with more than 180 days but less than one year of unlawful presence.
- 10-year ban: For those with one year or more of unlawful presence.
These bans pose significant challenges for individuals seeking to adjust their status or gain any path to legal status.
Eligibility for the I-601A Provisional Waiver
The I-601A waiver allows certain individuals to request a waiver of the 3- or 10-year reentry bans before leaving the U.S. for consular processing. To qualify, applicants must:
- Be physically present in the United States;
- Be at least 17 years old;
- Have an approved immigrant visa petition (e.g., Form I-130) and have paid the Department of State's immigrant visa processing fee;
- Demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the waiver is not granted; and
- Believe they are inadmissible solely due to unlawful presence.
It's important to note that individuals with certain immigration violations or criminal histories may not be eligible.
Application Process
Applicants must file Form I-601A, Application for Provisional Unlawful Presence Waiver, with USCIS. There is a filing fee, and the application requires substantial supporting evidence, particularly demonstrating the extreme hardship that a qualifying relative would face if the waiver is denied. Given the complexities involved, seeking assistance from an experienced immigration attorney is highly recommended.
Benefits of the Provisional Waiver
Obtaining an I-601A waiver before departing the U.S. can significantly reduce the time applicants spend abroad during consular processing, minimizing family separation. However, approval of the waiver does not guarantee the issuance of an immigrant visa, as applicants must still meet all other eligibility requirements.
Adjustment of Status under Section 245(i) of the LIFE Act
The Legal Immigration Family Equity (LIFE) Act's Section 245(i) offers a significant path to legal status for certain undocumented immigrants in the United States. This provision allows individuals who would otherwise be ineligible to adjust their status due to unauthorized entry or other immigration violations to obtain a green card without leaving the country.
There are many cases where undocumented immigrants, particularly well-educated individuals, may have an employer who is willing to sponsor them for a green card. In some instances the employer will need to go through a process known as Labor Certification or PERM prior filing for the prospect's employment-based visa petition. However, even after such steps are successfully completed, the process still requires the immigrant to return to their home country because of their original unlawful entry or out-of-status condition. Yet, if the individual has 245(i) protection, they can complete the process in the United States and obtain a green card without leaving.
Eligibility Criteria
To qualify for adjustment of status under Section 245(i), applicants must meet specific requirements:
- Qualifying Petition: An immigrant petition (such as Form I-130) or labor certification application must have been filed on the applicant's behalf on or before April 30, 2001. This includes petitions filed directly for the individual or derivatively through a parent or spouse.
- Physical Presence: If the qualifying petition was filed between January 15, 1998, and April 30, 2001, the applicant must have been physically present in the U.S. on December 21, 2000.
- Supplemental Fee: Applicants are required to pay a $1,000 penalty fee in addition to the standard application fees.
Application Process
To apply for a green card under Section 245(i), applicants must submit:
- Form I-485: Submit Form I-485, Application to Register Permanent Residence or Adjust Status, along with applicable filing fees.
- Penalty Fee: In addition to the standard filing fees, include the $1,000 penalty fee with the application.
- Supporting Documents: Submit evidence of the qualifying petition, proof of identity, relationship to the petitioner, evidence of continuous residence, and all other necessary documentation.
Benefits of Section 245(i)
Utilizing Section 245(i) allows eligible individuals to adjust their status within the U.S., avoiding the need to depart the country and potentially face reentry bars due to unlawful presence. This provision facilitates family reunification and provides a legal avenue for those who have long-standing ties to the U.S.
Other Considerations
It's important to note that Section 245(i) does not waive all grounds of inadmissibility. Applicants must still meet other eligibility requirements and may need to apply for additional waivers if other inadmissibility issues exist. Given the complexities involved, consulting with an experienced immigration attorney is advisable to navigate the process effectively.
For more detailed information, refer to the USCIS page on Green Card through INA 245(i) Adjustment.
Military Parole in Place for Family Members of U.S. Service Members
Military Parole in Place (PIP) provides a unique path to legal status for certain undocumented family members of U.S. military personnel. This program reflects the government's commitment to supporting military families and ensuring service members can focus on their duties without undue hardship.
Parole in Place is a special immigration benefit that allows undocumented spouses, children, and parents of active-duty military and veterans to gain temporary permission to remain in the U.S. It also facilitates the green card application process. Unlike traditional parole, this process occurs without requiring the individual to leave the country, helping families avoid reentry bars triggered by unlawful presence.
Eligibility for Military Parole in Place
To qualify for PIP, applicants must:
- Be an immediate family member (spouse, unmarried child under 21, or parent) of a current or former member of the U.S. military;
- Currently reside in the United States without a lawful entry; and
- Demonstrate that granting parole would benefit the service member or veteran, alleviating hardship.
Benefits of Parole in Place
- Temporary Legal Status: Approved applicants receive one year of authorized stay in the U.S., renewable annually.
- Work Authorization: Individuals may apply for work permits (Employment Authorization Document) during the parole period.
- Path to Adjustment of Status: Parole in Place allows eligible individuals to apply for a green card (permanent residency) without leaving the country.
How to Apply
- Submit Form I-131: File the Application for Travel Document with USCIS, requesting parole in place.
- Provide Evidence: Include proof of the family relationship, military service (e.g., DD Form 214), and evidence of hardship if applicable.
- Await Approval: USCIS will review the request and decide on the application.
CitizenPath's Travel Document Package can help make this process easy and affordable.
Seeking Asylum: A Path to Legal Status in the U.S.
Asylum offers a vital path to legal status for individuals fleeing persecution in their home countries. By obtaining asylum, individuals can legally reside in the United States, access employment, and eventually pursue permanent residency.
Eligibility for Asylum
To qualify for asylum status, applicants must demonstrate:
- Presence in the U.S.: Applicants must be physically present in the United States, regardless of their method of entry.
- Persecution or Fear Thereof: Applicants must have experienced past persecution or possess a well-founded fear of future persecution in their home country.
- Protected Grounds: The persecution must be due to race, religion, nationality, membership in a particular social group, or political opinion.
- Application Deadline: Generally, individuals must apply for asylum within one year of their arrival in the United States.
Benefits of Asylum Status
- Legal Residence: Asylees are authorized to live in the United States indefinitely.
- Employment Authorization: Asylees may apply for employment authorization, allowing them to work legally in the U.S.
- Path to Permanent Residency: After one year of continuous presence in the U.S. as an asylee, individuals may apply for a green card (permanent residency).
- Family Reunification: Asylees can petition to bring their spouse and unmarried children under 21 to the United States.
Application Process
The asylum application process begins by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS. There is no filing fee for this form. Submitting evidence of past persecution or fear of of future persecution may be a significant hurdle for this process. So obtaining the assistance of an experienced asylum attorney can be extremely helpful. If approved, the applicant is granted asylum status, allowing them to live and work legally in the U.S. and later apply for permanent residency after one year. If denied, the case may be referred to immigration court for further proceedings.
U Visa: A Path to Legal Status for Crime Victims
The U visa offers a vital path to legal status for undocumented immigrants in the United States who have been victims of certain crimes. This humanitarian program encourages cooperation with law enforcement by providing temporary legal status and work authorization to eligible individuals.
Eligibility Criteria
To qualify for a U visa, applicants must meet specific requirements:
- Victim of a Qualifying Crime: The individual must have suffered substantial physical or mental abuse due to criminal activities such as domestic violence, sexual assault, human trafficking, or other serious offenses.
- Assistance to Law Enforcement: Applicants must possess information about the criminal activity and have been, are, or are likely to be helpful in the investigation or prosecution of the crime.
- Admissibility: The applicant must be admissible to the United States. If there are grounds for inadmissibility, such as prior immigration violations, a waiver may be available.
Benefits of the U Visa
- Temporary Legal Status: U visa holders receive nonimmigrant status valid for up to four years, with the possibility of extensions in certain circumstances.
- Work Authorization: Recipients are eligible to apply for employment authorization, allowing them to work legally in the United States.
- Path to Permanent Residency: After three years of continuous presence in the U.S. under U visa status, individuals may be eligible to apply for a green card (permanent residency).
- Family Members: Certain family members may also obtain derivative U visas, promoting family unity.
Application Process
To apply for a U visa, the applicant must submit Form I-918, Petition for U Nonimmigrant Status, along with evidence of harm suffered. A law enforcement official must complete Form I-918 Supplement B, certifying the applicant's helpfulness in the investigation or prosecution of the crime.
If you believe your situation may warrant a U visa, speak to an immigration attorney. An attorney can help you determine eligibility and properly contact law enforcement officials. There are also many non-profit organizations that work with immigrant victims of crime. It is important that you make your wishes known early in the process.
Green Card through Registry for Long-Term Residents
A provision in our current immigration law, known as “registry,” allows certain long-term, undocumented residents of the United States to “register” for lawful permanent resident (LPR) status.
Eligibility Criteria
To qualify for a green card through registry, applicants must meet the following requirements:
- Continuous Residence: Demonstrate continuous residence in the U.S. since before January 1, 1972.
- Good Moral Character: Establish good moral character throughout the period of residence.
- Admissibility: Be admissible to the United States, meaning no disqualifying criminal convictions or other grounds of inadmissibility.
- No Prior Lawful Admission: Lack a record of lawful admission for permanent residence.
Application Process
To apply for a green card through registry, individuals must submit Form I-485, Application to Register Permanent Residence or Adjust Status. However, the application process is much more complicated than submitting a form. Applicants must include substantial supporting documentation to evidence entry, residency, and good moral character. Work with an immigration attorney for the best result.
Registry Movement
In the nearly 100 years of this law’s existence, Congress has advanced the registry date only four times. Most recently in 1986, the registry date was set at January 1, 1972. In other words, only non-citizens who entered the United States by that date are eligible to apply for a green card through registry. In fact, the current registry date is so far in the past that very few individuals are eligible.
That’s why registry is back in the news as a possible way to give undocumented individuals a path to legal status. The law is well-established and only needs a simple date adjustment to open the door to thousands (even millions) of new applicants to become permanent residents and eventually U.S. citizens.
Last Stop: Non-LPR Cancellation of Removal
A final option for deportation defense may be available to certain undocumented individuals who have lived in the United States for a long time and have been placed into removal proceedings. You may be able to obtain lawful status and a green card through Non-LPR Cancellation or Removal.
To qualify for cancellation, you must meet all of the following requirements:
- You have been living and continuously physically present in the U.S. for at least 10 years;
- Your removal (deportation) from the U.S. would cause “exceptional and extremely unusual hardship” to your U.S. citizen or permanent resident spouse, child, or parent;
- You can show that you have good moral character for the past 10 years; and
- You have not been convicted of certain crimes or violated certain laws.
Unfortunately, you cannot proactively sign up for this benefit. It’s only available to someone facing removal in immigration court. Meeting all the requirements above is just the minimum criteria. There’s also a limit of 4,000 green cards issued annually under this law. In other words, there are many people who satisfy all the requirements but do not receive the cancellation of removal. It’s incredibly important to get the assistance of an immigration attorney experienced with deportation defense and establishing the merits of your hardship.
Even if none of the paths to legal status mentioned above apply to you, there’s reason to be optimistic. Politicians, immigration advocates and organizations are pushing hard for legislative change that will provide relief to undocumented immigrants that are already in the United States and positively contributing to the U.S. economy.
About CitizenPath
CitizenPath provides simple, affordable, step-by-step guidance through USCIS immigration applications. Individuals, attorneys and non-profits use the service on desktop or mobile device to prepare immigration forms accurately, avoiding costly delays. CitizenPath allows users to try the service for free and provides a 100% money-back guarantee that USCIS will approve the application or petition. We provide support for the DACA Renewal Application (Form I-821D) , Adjustment of Status Application (Form I-485), and several other immigration packages.
Our service can help individuals who have a lawful entry and want to apply for a green card based on a relationship to an immediate relative. For all other paths to legal status described above, please speak to an experienced immigration attorney that can help you navigate the process. Visit our page to search for immigration attorneys in your area.
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