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Adjustment of Status Alternatives for Undocumented Immigrants

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

Can undocumented immigrants who have illegally entered the country adjust their status and receive a green card while in the United States?

No. Those nonimmigrants, who have unlawfully entered the United States without inspection, cannot change their status (and receive a green card) inside the United States.

What can I do to get a green card, if I am the beneficiary of a family-based or employment-based immigrant petition?

If you are an undocumented immigrant, who has illegally entered the United States and are the beneficiary of a pending or approved family-based or employment-based immigrant petition, you must leave the country and go to a U.S. consulate overseas to obtain an immigrant visa (i.e., green card).

The requirement of leaving the United States to get an immigrant visa presents a serious hurdle for undocumented immigrants. This is so because, by the time they leave the United States, they may have accumulated so many days of unlawful presence that they would be inadmissibile for either 3 or 10 years.  See Consequences of Overstaying.  There are some limited exceptions to this rule.

To overcome the inadmissibility hurdle resulting from unlawful presence, undocumented immigrants would need to obtain a waiver. However, the rules for obtaining waiver of inadmissibility resulting from unlawful presence are very strict.

If you are an undocumented immigrant who needs a waiver of inadmissibility because of unlawful presence, you must meet one of the following requirements:

Note that the individual or the entity who has petitioned for your immigrant classification need not be the same individual as your qualifying relative who would experience extreme hardship, if you were denied admission.

Can I apply for a waiver of inadmissibility while I am still in the United States?

Yes, but only under limited circumstances.

Generally, if you are an undocumented immigrant, you must leave the country and apply for consular processing at a U.S. consulate overseas. You may then request a Application for Waiver of Grounds of Inadmissibility during the consular processing period. That means that you will have to wait overseas, for a relatively long time, while your waiver application is being decided.

In certain circumstances, you may be eligible to file an Application for Provisional Unlawful Presence Waiver while you are still inside the United States. The benefit of that application is that you can wait in the United States while your waiver application is being decided. If your application is approved, you can make an appointment with the U.S. consulate overseas and go there to for immediate consular processing. Doing so will substantially reduce the period of time you will need to spend overseas for consular processing.  Note that the Application for Provisional Unlawful Presence Waiver is helpful only if unlawful presence is the only ground of your inadmissibility. If you believe you may be inadmissible for other reasons, see Application for Waiver of Grounds of Inadmissibility.

What are the exceptions to the waiver requirement?

You do not need a waiver of inadmissibility resulting from unlawful presence, if

  • You hold the T nonimmigrant status (victims of severe forms of human trafficking) and seek adjustment of status.
  • You are a Violence Against Women Act (VAWA) self-petitioner (or the child of a VAWA self-petitioner) and you can show a "substantial connection" between the battery or extreme cruelty, which was the basis of the VAWA claim and your unlawful presence.
  • If you are applying for Temporary Protected Status (TPS), you do not need a waiver of the ground of inadmissibility due to unlawful presence.

In addition, you may apply for adjustment of status, upon paying a $1,000 fine, if any of the following exceptions apply to you:

  • If a visa petition or labor certification application was filed on your behalf on or before April 30, 2001, or
  • If a visa petition or labor certification application was filed on your behalf between January 14, 1998, and April 30, 2001, and you were physically present in the United States on December 21, 2001.

Before you dismiss these exceptions, check to see if any of your relatives has filed an immigrant classification petition on your behalf, which may have had a long waiting period for visa availability.

 

Related Topics:

Removal Proceeding Defenses & Remedies for Undocumented Immigrants

Undocumented Immigrants

Application for Provisional Unlawful Presence Waiver

Application for Waiver of Grounds of Inadmissibility

 

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