Can I Get Deported for Filing an I-130 If I've Accrued Unlawful Stay?

We're going to assume that what you're actually asking is whether having a family member file immigration Form I-130 on your behalf could lead to your deportation, given that you're currently living unlawfully in the United States. The I-130 Petition for Alien Relative, issued by U.S. Citizenship and Immigration Services (USCIS) must be prepared and signed by the U.S. citizen or lawful permanent resident family member of an intending immigrant, to start the process of getting that immigrant lawful permanent residence (a green card). So, technically speaking, it's not you that files Form I-130, it's your American relative who files it on your behalf.

Now, let's break down the question of whether having an I-130 filed for you puts you at any risk, if you're already living unlawfully in the United States. There are two issues to be concerned with:

• whether writing your current address on the form (which it asks for) will alert the immigration authorities to your whereabouts, and
• what will, ultimately, be the impact of your unlawful presence on your ability to obtain a green card.

We'll address both of these topics here.

Will Filing the I-130 Result in Your Arrest by Immigration Authorities?

Numerous U.S. citizens and residents file I-130s for their unlawfully present family members every year. So far, USCIS has not shown any pattern of collecting the information and forwarding it to the enforcement arm of the Department of Homeland Security (DHS) called Immigration and Customs Enforcement, or ICE. That doesn' mean it won't start at some point.

It's a risk you may have to take -- and one that you should not try to get around by having your petitioning relative lie about your address  on the application. A lie can come back to haunt you. If USCIS finds out, it may reject your application based on fraud, and refuse to grant you any other immigration benefit or relief.

Will Accruing Unlawful Stay Hurt Your Chances of Immigrating?

This is a more complication question. The issue here is that, if 180 days have passed since either the expiration of your lawful U.S. status (say, if you entered on a visa), or since your unlawful entry to the U.S., you become inadmissible to the United States (ineligible for a green card; in this case, for a set period of time). With an unlawful stay of between 180 days and one year, you will be inadmissible for three years. With an unlawful stay of over one year, you become inadmissible for ten years.

But that's not the end of the analysis. Only people who leave the U.S. to apply for their green card at a U.S. consulate face this ground of inadmissibility. If you are able to stay, and apply for your green card in the U.S., through a process called Adjustment of Status, you can get around this inadmissibility problem. But only a few classes of people are allowed to adjust status, most notably immediate relatives (spouses, parents, and minor unmarried children) of U.S. citizens who entered the U.S. on a valid visa or visa waiver (even if they later overstayed).

If you have no choice but to apply for your green card overseas, through what's known as "consular processing," you may be able to apply for a waiver of your unlawful presence. But this option is not available to everyone, and can be difficult to get granted. Another option might be to leave the U.S. now, so that you start working off your period of inadmissibility.

Getting Legal Help

There are a number of factors at play in how your case will likely work out. For best results, consult with an experienced U.S. immigration attorney before making any decision.