There are no provisions in US immigration law that allow an illegal immigrant to change status to a legal immigrant or legal resident (Green Card) based on time spent in the United States. However, an illegal immigrant who is subject to removal proceedings (deportation) may petition for Cancellation of Removal based on three factors:
- You have been in the United States for at least 10 years
- You exhibit good moral character
- You have an immediate family member who is a US citizen, and the family member will experience extreme hardship if you are deported
While it isn’t too difficult to prove your length of stay in the United States and your good moral character (lack of a criminal record is usually the best evidence), it is extremely challenging to prove that your American family member will experience extreme hardship in your absence. To be successful, you’ll need to offer concrete evidence that the relative will suffer “exceptional or extremely unusual hardship,” and that said hardship is directly related to your deportation. In most cases, you will need an experienced immigration attorney to help you build a strong case for Cancellation of Removal.
How to Transition to Legal Status
There are two ways that an individual may be considered an illegal immigrant (undocumented, illegal alien, etc.). First, those who do not lawfully pass through a US port of entry with valid travel documents are considered illegal immigrants. Second, immigrants who lawfully enter the country but either violate the terms of their visa or remain in the United States on an expired visa are considered illegal immigrants. In both cases, the illegal immigrant is subject to removal proceedings if and when they are taken into custody by immigration officials.
If you are an illegal immigrant and you would like to become a lawful permanent resident in the United States, there are only five potential paths to legal status:
- Marry a US citizen
- Serve in the US Armed Forces
- Petition for Cancellation of Removal
- Petition for asylum
- Petition for Temporary Protected Status (TPS)
Marriage to a US Citizen
Immigrants who enter into a valid marriage (i.e. you marry for love, not immigration benefits) with a US citizen are eligible for a Green Card as an immediate relative. As long as the immigrant is in the country legally with a valid visa, the process of applying for a change of status to permanent residency is fairly straightforward. However, when the immigrant is in the United States illegally, obtaining a Green Card becomes much more complicated.
If you are in the country illegally due to an expired visa, the good news is that your lawful entry into the United States may qualify for an exception. When you file Form I-485 for your Green Card, you’ll just need to include Form I-601, Application for Waiver of Grounds of Inadmissibility. As long as you exhibit good moral character and have a clean criminal record, you shouldn’t have too much difficulty getting approved. The application process will probably take longer, but your chances of success are good—especially if you have an experienced immigration attorney in your corner.
If you are an illegal immigrant because you entered the United States unlawfully, you will likely need to leave the country and spend some time outside of the United States before you may be allowed back as a legal immigrant. Once you successfully complete a visa interview with a consular officer at a US Embassy or Consulate in your home country, the consular officer will impose a ban to penalize you for your unlawful entry. Immigrants who have spent 6 – 12 months in the United States are typically subject to a three-year ban, while those who have spent more than one year in the United States may face up to a ten-year ban.
There is, however, a sliver of hope for illegal immigrants who are subject to a three- or ten-year ban. If you can prove that your absence from the United States will cause extreme hardship to an immediate family member who is a US citizen (e.g. your American spouse), USCIS may approve a waiver that allows you re-entry into the United States. This is an extremely difficult endeavor and will undoubtedly require the assistance of an experienced immigration attorney.
Service in the US Armed Forces
Illegal immigrants to who serve honorably and on active duty during wartime are eligible to receive a Green Card based on their service in the Armed Forces. Qualifying wars and conflicts include World War I (April 6, 1917 – Nov 11, 1918), World War II (Sept 1, 1939 – Dec 31, 1946), the Korean conflict (June 25, 1950 – July 1, 1955), the Vietnam conflict (Feb 28, 1961 – Oct 15, 1978), the Persian Gulf War (Aug 2, 1990 – April 11, 1991), and Operation Enduring Freedom (Sept 11, 2001 – present). As Operation Enduring Freedom (e.g. the Iraq War or the War on Terrorism) is ongoing, illegal immigrants who wish to obtain a Green Card through qualifying military service can still enlist until the US President issues an Executive Order to end the war.
Cancellation of Removal
This is the first option that we discussed previously. Again, this is only possible for illegal immigrants who are already in removal proceedings. If you are an illegal immigrant and you are not facing deportation, you should not apply for a Cancellation of Removal, as doing so would bring your illegal immigration status to the attention of US immigration officials. If you are currently in the midst of removal proceedings and you believe you qualify for a Cancellation of Removal, you should consult with an attorney as soon as possible.
In order to qualify for asylum, you must prove that you have been persecuted in your home country due to race, religion, nationality, political affiliation, or social status, or that you reasonably fear future persecution due to these qualities should you be forced to return to your home country. You’ll need to submit Form I-589, Application for Asylum, to USCIS within one year of your entry into the United States, or within one year of the expiration of your authorized stay. If your application is approved, you may immediately apply for a Green Card.
Temporary Protected Status
Immigrants who travel from a country that has recently suffered a civil war, natural disaster, environmental disaster, or another qualifying catastrophe that renders the country unsafe for its citizens to return, may apply for Temporary Protected Status. If approved, TPS allows the immigrant to legally reside in the United States for a set period of time (up to a max of 18 months). TPS also includes employment authorization, so the immigrant can legally work while they are in the country.
Unfortunately, this option does not include the right to petition for a Green Card. Immigrants with TPS will have to return to their home country at the conclusion of their authorized stay and apply for a visa with the US Embassy or Consulate (unless they marry a US citizen, enlist in the armed forces, or are granted asylum).
Call our Immigration team at(480) 626-2388 to discuss your case today.
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