can I get a green card if I am an illegal immigrant

This is perhaps one of the most common questions immigration attorneys get. Let’s take a look at this question through three different scenarios:
 
Hypothetical A: Susana is a native of Ecuador. She came to the United States under an F1 student visa when she was 18 years old. After graduating, she decides that she doesn’t want to return to Ecuador, so she remains in the United States after her F1 student visa expires. When she turns 27, she meets Ron, a United States citizen, and they decide to get married – after Susana has been illegal for 5 years.

Hypothetical B: Nathan, a citizen of Mexico, entered the United States when he is 20 years old by crossing the border illegally. When Nathan turned 23, he learned that his father was extremely ill so Nathan decides to return to Mexico to visit him. Nathan spends 3 months in Mexico caring for his father, until he returns to the United States. Nathan eventually meets Sarah, a United States citizen and when Nathan turned 26, they decided to get married.

Hypothetical C: Miguel, a citizen of Peru, entered the United States illegally when he was 21. After having lived in the United States for 19 years, Miguel marries a United States citizen. Miguel’s entry into the United States when he was 21 was his only entry.
 
Out of the three hypotheticals above, Susana has the easiest path to become a permanent resident since, at the time of her entry, she was both admitted and inspected. For reasons to be discussed later, Nathan has the most difficult pathway.
 
Let’s first discuss Susana’s case. Susana is eligible for adjustment of status. This means that she can apply for and receive her green card while she is in the United States. Because she is the spouse of a United States citizen, she is immediately eligible to get a green card and doesn’t have to wait in line for years upon years like many United States citizen family members do. The adjustment of status process is fairly straightforward. First, in order to be eligible, you must meet the following criteria:
·Be physically present inside the United States; and
·Have made a lawful entry into the United States; and
Lawful entry means that you were admitted or paroled into the U.S. For most people, this means that you entered the U.S. with valid documentation and made face to face contact with a U.S. immigration officer, and that officer acknowledged your entry to the United States. If you entered with a valid visa, but that visa has since expired, you still had a lawful entry.
- have an approved I-130 petition (Family preference applicants must have an approved Form I-130, Petition for Alien Relative, and a visa number must be available. However, there’s an exception for immediate relatives of U.S. citizens. Immediate relatives may file the adjustment of status application together with the I-130 petition.)

Since Susana meets each of these requirements, she is clearly eligible. She will need to complete the following forms:

• Form I-485, Application to Register Permanent Residence or Adjust Status
• Form I-130  Petition for Alien Relative
• Form I-130A, Biographic Information (if relative is a spouse)
• Form I-864, Affidavit of Support
• Form I-693, Report of Medical Examination and Vaccination Record
• Form I-765, Application for Employment Authorization (optional)
• Form I-131, Application for Travel Document (optional)

In addition to filing these forms, she will need to submit the following documents:

• A copy of your marriage certificate;
• Proof that any marriages before your current marriage was legally ended;
• A passport-style color photo of you and your spouse. Each photo must be taken within 30 days of filing the petition, have a white background, be glossy, unretouched, and measure 1 inch from your chin to the top of your hair;

• Proof of good faith marriage such as -
  • Joint property ownership;
  • A lease showing that you are currently sharing a residence;
  • Combined financial resources;
  • Birth certificate(s) of any child(ren) born to you and your spouse;
  • Affidavits (written, sworn oaths) completed by third parties confirming any of the bullet points listed above. Each Affidavit must include each person’s full name, address, date and place of birth, their relationship to you, and details of their knowledge of your relationship; and
  • Additional documentation that shows proof of your marriage.
• Proof of inspection and admission such as copies of passport showing stamp or copy of your I-94 (your I-94 can be obtained by going online to the following website, filling in the requested information, then printing the form out: https://i94.cbp.dhs.gov/I94/)
• Sponsor’s tax returns for most recent tax year (make sure your sponsor is making at least 125% of the poverty level, or else you will be required to find a joint sponsor. Also, even if your United States citizen spouse does not make the required income, that person must still serve as your sponsor.)

The filing location is easy to find. Just go to USCIS’s website, and it will tell you the filing locations for an adjustment of status application. After filing your adjustment of status application, you will receive a receipt notice about two weeks later informing you that USCIS has received your application. Hold on to this document as it is the only way you have of tracking the status of your case by referring to the receipt number that can be found in the I-797. Approximately 4-6 weeks after filing your application, you will receive another notice from USCIS asking you to attend a biometrics (fingerprint) appointment at your closest USCIS office. This is nothing to be concerned about as it just involves a quick trip to the USCIS office to have your fingerprints taken – nothing else happens on the visit, but make sure to bring government issued identity document with you or else they won’t let you take your fingerprints. Also, make sure not to skip your appointment or else your application will be deemed waived and you will have to start all over and pay the filing fee all over again!!!!

After your biometrics appointment, you should expect a LOOONG delay in your case. Your next appointment probably won’t be scheduled until about ten or eleven months AFTER your initial adjustment of status application is filed. It is taking USCIS approximately 13-14 months to approve these applications from the time they are filed.
Let’s now take a look at Miguel’s hypothetical. Unfortunately, Miguel is not eligible for adjustment of status because he was not inspected and admitted into the United States, meaning he did not enter the United States on a visa. Instead, Miguel must go through an entirely different process. First, Miguel’s wife must first file the I-130 (same form as mentioned above). Once the I-130 is approved, Miguel can ask for a waiver for his unlawful presence in the United States which makes him ineligible for a green card. Anyone who has accrued more than 180 days of unlawful presence in the United States is subject to a three year bar starting from when that person returns to his home country and anyone who has been in the United States illegally for more than one year has a ten year bar from coming to the United States beginning from when that person returns to his home country. The good news is that Miguel can wait for his I-601A waiver to be approved before he returns to his home country to consular process his green card. If the I-601A waiver is approved, the 3 and 10 year bar will not apply to Miguel. Before leaving the United States, Miguel should go ahead and file his I-601A waiver application so that he will know in advance whether his unlawful time in the United States will be waived. Here are the documents Miguel will need to submit to USCIS:

• USCIS form I-601A
• Receipt of payment for the immigrant visa processing fee (you will receive a letter in the mail explaining all of this after your I-130 is approved)
• I-601A application fee
• Biometrics fee;
• I-130 approval notice;
• Document detailing extreme hardship your U.S. citizen spouse would face if the waiver is not granted. This is by far the most difficult part of the application. Examples of this are always considered on a case by case basis, but USCIS will consider the following extreme hardship factors:
  • The age of the alien, both at the time of entry to the United States and at the time of the application for relief;
  • The age, number, and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
  • The health condition of the alien or the alien's children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
  • The alien's ability to obtain employment in the country to which the alien would be returned;
  • The alien's length of residence in the United States;
  • The existence of other family members who are or will be legally residing in the United States;
  • The financial impact of the alien's departure;
  • The impact of a disruption of educational opportunities;
  • The psychological impact of the alien's deportation;
  • The current political and economic conditions in the country to which the alien would be returned;
  • Family and other ties to the country to which the alien would be returned;
  • Contributions to and ties to a community in the United States, including the degree of integration into society;
  • Immigration history, including authorized residence in the United States; and
  • Where applicable, the availability of other means of adjusting to permanent residence status

Assuming Miguel’s I-601A waiver is approved, Miguel will then be able to go to his interview at the United States consulate in Peru where he will be able to get his green card.
            Finally, let’s take a look at the final hypothetical – Nathan’s case. Unfortunately, Nathan is subject to the “permanent bar.” The permanent bar of inadmissibility is found in INA Sec. 212(a)(9)(C)(i)(I). It comes into play when the intending immigrant has accrued at least one year of unlawful presence in the United States and then subsequently leaves the United States and attempts to reenter or reenters the United States without inspection. Despite what its name states, there are limited scenarios in which a person may be allowed to waive the permanent bar or seek permission to reenter the United States after 10 years from the date of his or her last entry have elapsed. Basically Nathan must return to Peru and wait for 10 years. Once the ten year period has elapsed, Nathan may then apply for a waiver to reenter the country using the same extreme hardship factors previously discussed herein.

            As you can see, there are a lot of issues to navigate when considering whether you are eligible to receive a green card as an illegal immigrant. This blog only considers three limited scenarios. You are strongly advised to seek the services of an experienced immigration lawyer who can help you navigate through this process. Louisiana immigration lawyers and attorneys at Liberty Law Group have the experience and expertise to do just that. Give us a call or send us a text today and let us provide you with a free consultation.