Several million undocumented immigrants in the U.S. received a stunning blow last week when the Supreme Court’s deadlocked decision effectively killed President Obama’s new deferred action plans. The immigration actions known as Deferred Action for Parents of Americans and Permanent Residents (DAPA) and an expanded version of the already successful Deferred Action for Childhood Arrivals (DACA) appear to be hopelessly frozen.
For undocumented immigrants, the clear goal is a path to a long-term legal status. These paths to legal status lead to permanent resident status (green card) and U.S. citizenship. Certain immigrants with no legal status may have some paths available. This article covers those options and who could qualify for them.
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 legal non-immigrant visa (e.g. tourist visa, student visa) that has since expired. The term “entered without inspection” or EWI is used to specifically describe someone that has come across the border and never interacted with a U.S. border agent.
Even before the DAPA and expanded DACA decision, there were several possible paths for undocumented immigrants to become green card holders. Although not everyone will qualify 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
Green Card or Permanent Residence through Marriage to a U.S. Citizen or Lawful Permanent Resident
One of the most common questions, and most common paths to legal status, is the treatment of an immigrant without legal status when he or she marries a U.S. citizen or lawful permanent resident.
Traditionally, it has always been possible for the undocumented spouse and her or his own dependent children to gain permanent resident status through the marriage to that U.S. citizen or permanent resident. The reality is however, that the immigration process is not always that easy. There are many issues that can become pitfalls to spouses and/or step children of U.S. citizens and permanent residents as they contemplate filing for legal residence status. By law, if the foreign spouse and children or step children entered the U.S. without inspection and remained in the U.S., they must leave the country and conclude their immigration process through U.S. consulates abroad to obtain the immigrant visa (green card). More importantly, if the immigrating spouse and/or children over 18 years of age resided in the U.S. unlawfully for at least 180 days (6 months) but less than one year, or they remained more than one year, they could then be automatically barred from re-entry to the U.S. for 3-10 years respectively once they leave they U.S.
In many cases these individuals can qualify and apply for a waiver of the 3- and 10-year bars if they can demonstrate that their absence from the U.S. would cause an “extreme and unusual hardship” to the U.S. citizen or lawful permanent resident spouse or parent. In the recent past, the waiver process required that the individual first travel out of the U.S. and apply from his or her country of origin. This was a costly, and very uncertain process that still risked keeping families apart of lengthy periods of wavier approvals or even worst, waiver denials and full exposure to the 3 or 10 year bars.
Fortunately, that process is a thing of the past.
A “provisional” waiver is now available that can be applied for and obtained while the applicant is still in the United States. The provisional waiver offers individuals some level of certainty that, once approved, they will be able to return to the United States after a successful consular interview. The provisional waiver program covers the undocumented spouse and children of U.S. citizens.
The goal of the provisional waiver program is to maintain family unity. “Extreme and unusual hardships” can generally include: 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, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.
Applicants should remember that it must be a bona fide (real) marriage to the U.S. citizen and that all previous marriages must have been lawfully terminated. Marriage fraud (a fake marriage to get a green card) carries harsh penalties that could even result in a felony conviction for the U.S. citizen.
Prospective applicants should always speak to an experienced immigration attorney before applying for a provisional waiver (Form I-601A, Application for Provisional Unlawful Presence Waiver). Although it may seem like a fairly straightforward process, these waivers are highly technical and require careful and thorough legal analysis. Your answers on the application could have long-term implications to your immigration case.
DREAMers Green Card or Permanent Residence through Employment with LIFE Act Protection
There are certain situations where DREAMers who have had the opportunity to receive higher education become candidates for higher skilled jobs. In such a scenario, U.S. employers may be interested in sponsoring the permanent residence of such high skilled prospective employee. Yet, even if a DREAMer is protected under DACA, such person may still need the benefits of 245(i) protection though the Legal Immigration Family Equity (LIFE) Act.
There are many cases where undocumented immigrants, particularly well-educated DREAMers, may have an employer who may wish to sponsor him or her 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 prospective DREAMer employment visa petition. However, even after such processes are successfully completed, the process still requires the immigrant to return to his/her home country because of his or her original unlawful entry or out of status condition. Yet, if the individual has 245(i) protection, he/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 finish their green card process in the United States if an immigrant petition was filed on their behalf or on 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 the DREAMer son or daughter may be covered by the LIFE Act’s 245(i) provision.
This is a simple presentation of the law and many additional requirements must be met. If this scenario sounds like it may apply to your situation, speak with an experienced immigration attorney that can explain the details.
Asylum status 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 were to return to that country. It is important to understand that the persecution must be done by the government, or by a group that the government is unwilling or unable to control.
In U.S. immigration law, persecution is fairly well-defined. Most importantly, the persecution must be on account of one of the following five groups: race, religion, nationality, membership in a particular social group or political opinion.
In general, eligibility for asylum requires that:
- You are present in the United States (by legal or illegally entry)
- 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 return
- The reason for persecution is related to one of five things: race, religion, nationality, membership in a particular social group, or political opinion
- You are not involved with an activity that would bar you from asylum
To begin an asylum case, your lawyer must file Form I-589, Application for Asylum and for Withholding of Removal, along with evidence supporting your claim. There is typically a screening interview to make sure an applicant’s case is warranted. This is why it is very important to work with a reputable organization (non-profit or legal firm) that is experienced with asylum cases.
Asylees are eligible to apply for a permanent resident status (green card) one year after receiving the asylum grant. The asylee’s spouse and children are also eligible to apply for a green card if they were admitted to the United States as asylees. To learn more about asylee status eligibility and obtaining a green card, read Eligibility and Benefits of Asylum Status.
U Visa for Victims of Crime
In 2000, the Victims of Trafficking and Violence Prevention Act created the U visa to protect non-citizens who have been victims of certain crimes and who have aided law enforcement. The law was created to encourage victims to cooperate with police and prosecutors without the fear of deportation. A U visa provides legal status, employment authorization, and can also provide a path to permanent resident status (green card) in some circumstances.
There are four eligibility requirements for a U visa:
- The individual must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity.
- The individual must have information concerning that criminal activity.
- The individual must have been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime.
- The criminal activity violated U.S. laws.
Qualifying criminal activities for a U visa include but are not limited to:
- Abusive sexual contact
- Domestic violence
- False imprisonment
- Female genital mutilation
- Felonious assault
- Involuntary servitude
- Obstruction of justice
- Sexual assault
- Sexual exploitation
- Slave trade
- Witness tampering
- Unlawful criminal restraint
- Other related crimes
Additional details about qualifying crimes can be found on the USCIS U visa page.
The victim must have useful information related to the crime and be willing to cooperate with police and officials responsible for investigating the case. The application for a U visa requires a certifying statement (Form I-918 Supplement B) from law enforcement. In some areas, individuals outside of law enforcement (such as a judge or child protective services) can provide the certifying statement.
It is possible for family members (spouse and children) to be covered with the same U visa. Family members who accompany the petitioner can, under certain circumstances obtain a U derivative visa. The U visa principal must petition on behalf of qualifying family members.
If you believe your situation may warrant a U visa, speak to law enforcement officials and an immigration attorney. 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.
Even if none of the four paths to legal status mentioned above apply to you, there’s reason to be optimistic. The 2016 Presidential election will bring change. 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.
CitizenPath is an online immigration resource that provides simple, step-by-step guidance through USCIS applications and petitions. Our low-cost service simplifies the application process by explaining each question and providing alerts if your answer to a question could be a problem. Most people do not need a lawyer to prepare USCIS forms, but many need a little assistance. That’s where CitizenPath can help. CitizenPath provides support for the Citizenship Application (Form N-400), Green Card Renewal/Replacement (Form I-90), DACA (Form I-821D) and several other USCIS immigration forms.
If you believe that you may qualify for one of the four paths to legal status described above, please speak to an experienced immigration attorney that can help you navigate the process. All four paths can be complicated cases that require the legal expertise of an immigration attorney. Visit our page to search for immigration attorneys in your area.