If you entered the U.S. without inspection, you may have options for gaining legal status, even if you have been placed in removal proceedings. But first, you should keep in mind some of the pitfalls.
The three- and ten-year bars to admissibility
It is one thing if you snuck into the country initially and never left. But if you stay in the country as an adult for more than six months and decide to leave, things become more complicated. Should you ever decide to legalize in the future, you may be considered inadmissible for either three or ten years, depending on how long you stayed in the U.S. without status.
Although there is a waiver available, you will only qualify if you have either a spouse or parent who is a U.S. citizen or green card holder. Even then, you must demonstrate that, if you were denied legal status, it would cause extreme hardship to that spouse or parent.
Note: If you are subject to the three- or ten-year bar, and you applied for adjustment of status in either 2006 or 2007 in the Ninth Circuit, talk to an attorney, because you may not need a waiver at all.
The problems with illegal re-entries
This has to do with people who left the U.S. after living here without status for one year, or were ordered removed. In either case, if you later tried to re-enter the U.S. illegally, you will be deemed inadmissible for ten years, and there is no waiver available.
That said, you may still be eligible to adjust your status if you fall within the recent Duran-Gonzalez class action settlement. That agreement covers individuals in the Ninth Circuit who filed an adjustment of status application with an I-212 waiver (i.e., an application for permission to reapply for admission to the United States) between August 13, 2004, and November 30, 2007. Talk to an attorney if you think you may qualify.
The problem with adjustment of status for those entered without inspection
If you entered the U.S. without inspection, you cannot generally adjust your status within the U.S. What is more, if you decide to leave the country and pursue a green card from a consulate abroad, you will likely trigger either the three- or ten-year inadmissibility bars discussed above, which means that you will have to apply for a waiver. For that reason, if you wish to obtain some kind of legal status in this country, you should also consider the options below.
Types of relief available:
Adjustment of status under INA sec. 245(i)
Although most people who entered without inspection cannot adjust their status in the U.S., you may fall within an exception if a family member or employer filed an immigrant visa on your behalf before April 30, 2001, and you were present in the U.S. on December 21, 2000. And that is true even if you are in removal proceedings. In any case, you will have to pay a penalty fee of $1000, and satisfy a few other requirements.
Temporary protected status
This is a limited form of relief available mainly to those who entered the U.S. without inspection. Although TPS does not lead to any kind of permanent immigration status, it does allow you to obtain employment authorization. But it is only available to certain nationals of Haiti, El Salvador, Nicaragua, Somalia, Sudan and other troubled spots in the world, as designated by the Department of Homeland Security.
The Violence Against Women Act
If you entered without inspection, you may qualify for a green card through VAWA if you are the victim of domestic violence, and your abuser is either a U.S. citizen or green card holder. But there are also other requirements: (1) you must have been present in the U.S. for three years; (2) you must show that you have been a person of good moral character during that period; and (3) you must prove that denying the relief would result in extreme hardship to you or a qualifying relative.
U-Visas are available to victims of certain kinds of crimes, regardless of their immigration status. This visa was designed to bring undocumented immigrants out of the shadows and to cooperate with law enforcement. To obtain a U-Visa, you must show that (1) you were the victim of a qualifying crime; (2) that you were, or are willing to be, helpful to law enforcement; and (3) that you were hurt mentally or physically as a result of the crime.
Asylum, withholding of removal, and the Convention Against Torture
These forms of relief and protection from removal are available even if you entered without inspection. They focus on whether you fear persecution or torture in your home country.
Cancellation of removal for non-lawful permanent residents
This form of relief is tailor-made for those who entered without inspection, and it allows you to obtain a green card. You must apply for cancellation of removal in immigration court, and it is generally available to those with longstanding ties to the U.S., and who merit relief in the exercise of discretion. It does, however, impose one particularly onerous requirement. You must be able to show that your deportation would cause “exceptional and extremely unusual” hardship to a U.S. citizen or lawful permanent resident spouse, child or parent.
If you entered without inspection and would like to discuss your options, please contact me today.
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