Illegal Immigrant: Legal Options to Stay in the US

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Entering the United States without approval is illegal. So is staying in the U.S. without permission after your visa or other authorized stay has expired. Even violating the terms of a legal entry can make your stay illegal.

The U.S. immigration law offers very few options to go from being illegal or undocumented immigrant to a U.S. permanent resident (with a green card). We briefly describe the most likely possibilities below, but you should see an attorney for further help.

Option 1 – Marriage to U.S. Citizen

Entering into a valid, bona fide (real, not sham) marriage with a U.S. citizen (of the same or opposite sex) makes you an “immediate relative” under the U.S. immigration laws. An immediate relative is theoretically eligible for a U.S. green card just as soon as you can get through the application process. However, your current illegal status could create problems.

If you are in the United States illegally because you stayed past the expiration date on a valid visa, rather than having entered illegally (without inspection), consider yourself lucky: Your legal entry qualifies you for an exception, under which you should be able to apply for your green card without leaving the United States, using a procedure called “adjustment of status.”

If, however, your most recent entry into the United States was illegal – for example, you crossed the U.S. border in secret, without stopping at an inspection point – you have very little chance of adjusting your status to permanent resident based on your marriage. The exception is if you fall into one of the following categories, created by an old law called Section 245(i):

  • Your employer or a family member filed an immigrant visa petition or (in the case of an employer) a labor certification on your behalf before January 14, 1998.
  • Your employer or family member filed an immigrant visa petition or labor certification on your behalf between January 14, 1998 and April 21, 2001 and you can also prove that you were physically present in the U.S. on the date the applicable law was passed, which was December 21, 2000.

Getting married to a lawful permanent U.S. resident (rather than a citizen) will also technically make you eligible for a U.S. green card, but because you face a long wait before a visa becomes available to you, your chances of adjusting status are even less (unless you fit one of the two 245(i): exceptions described above).

There is one last hope for people who cannot adjust status based on their marriage to a U.S. citizen or permanent resident: You can attend the interview for your green card (which is the last step in the application process) at an overseas U.S. consulate in your home country (called “consular processing”).

However, at that point the consulate will penalize you for your illegal U.S. stay, with a time bar on returning to the United States. The penalty is either to spend three years outside the United States if you stayed in the U.S. illegally for six months (180 days) or more; or to spend ten years outside the United States if you stayed in the U.S. illegally for one year or more.

If you haven’t yet been in the United States illegally for six months or more, you might want to leave right away in order to make use of the consular processing possibility.

If you have already spent more than six months in the United States illegally, then talk to an immigration lawyer. You may qualify for a “waiver,” (legal forgiveness) allowing you to reenter the United States right away after your consular processing interview, but this waiver is hard to get. You would need to prove that your being denied the immigrant visa (green card) would cause extreme hardship to one or more of your U.S. citizen family members.

Learn more about marriage based visas and green cards.

Option 2 – Service in the U.S. Military

If you serve honorably and on active duty with the U.S. Armed Forces during one of the wars or conflicts named below, the law allows you to apply for U.S. citizenship. You don’t even have to go through the usual step of applying for a green card first.

You must, however, enlist (sign up) while on U.S. territory, such as the Canal Zone, American Samoa, Swains Island, or a noncommercial U.S. ship.

The conflicts that qualify you for immediate U.S. citizenship include:

  • World War I (April 6, 1917 to November 11, 1918)
  • World War II (September 1, 1939 to December 31, 1946)
  • the Korean hostilities (June 25, 1950 to July 1, 1955)
  • the Vietnam hostilities (February 28, 1961 to October 15, 1978)
  • the Persian Gulf War (August 2, 1990 to April 11, 1991)
  • “Operation Enduring Freedom” (otherwise known as the “War on Terrorism” or “Iraq Hostilities”), which began September 11, 2001 and will end by order of the U.S. President.

Option 3 – Cancellation of Removal

If you are arrested by the immigration authorities, you might be able to avoid removal, and receive a U.S. green card, if you can prove all of the below:

  • You have already been physically present in the United States for at least ten years.
  • You have been a person of good moral character during those ten years.
  • Your removal from the U.S. would result in exceptional and extremely unusual hardship to your spouse, parent, or child who is a U.S. citizen or lawful permanent resident.
  • You aren’t disqualified from cancellation for one of a variety of reasons, such as that you have committed one of various types of crimes or immigration violations, have persecuted others, have been a member of a totalitarian or communist party, and so on.

Don’t attempt to apply for cancellation of removal on your own – it is only available if you are already in immigration court proceedings. You’ll definitely need a lawyer’s help in this situation.

Option 4 – Asylum

You can apply for the right to stay in the U.S. if you qualify for asylum and apply within one year of your entry or the expiration of your authorized stay.

You’ll need to show that you have been persecuted, or fear future persecution, in your home country, based on your race, religion, nationality, political opinion, or membership in a particular social group.

The process involves submitting an application, together with detailed documentation of your membership in the group that you claim and the persecution that you faced or fear.

If you are granted asylum, you can apply for a green card one year after your approval, and for U.S. citizenship four years after that. (If denied, you will be deported.).

To learn more, visit our guide on achieving asylum or refugee status.

Option 5 – Temporary Protected Status

If you come from a country that has recently had a civil war, environmental or natural disaster, or other trouble that makes it unsafe for its citizens to return there, the United States may offer what’s known as Temporary Protected Status or “TPS.”

This is not a green card, nor does it lead to a green card. However, TPS would allow you to stay in the United States legally for a set amount of time (maximum 18 months), and to receive a work permit while you’re here.  See the USCIS website (www.uscis.gov) for details and the list of currently eligible countries.

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