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How an illegal immigrant can get a green card in the USA: answers to the most popular questions

There are over 11 million immigrants in the United States who do not have legal status or are considered undocumented. There are various ways to "fix" their status and get a green card, reports Documented.

Photo: IStock

All immigration experts agree on one thing: it is very difficult to obtain legal status, and it depends on the circumstances of each individual. It is best to consult with an immigration lawyer.

Undocumented immigrant

Although the term "undocumented" is often associated with those who entered a country without being checked, holders of many categories of visas, such as F-1 (academic student) and B-1/B-2 (visitor/tourist) visas, are considered undocumented after they expire. the validity period of their document if they continue to reside (exceed the length of stay) in the United States.

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There are several paths that can be taken to obtain legal status, and each path will be different depending on the circumstances applicable to the immigrant. There are also permanent and temporary categories. Some categories are also faster. The best way to find out which category best suits your needs is to speak with an immigration attorney.

You can apply by reason of marriage to a citizen or lawful permanent resident (LPR), at the request of a US citizen or LPR relative, and even through employment under certain conditions. There are also categories for victims of domestic violence (VAWA), victims of other criminal acts (U visa), and victims of human trafficking (T status). There are also special categories for citizens of certain countries.

“When undocumented people come to us and ask us questions, we listen to their story and try to make some kind of connection with any existing family that might be here. So we are trying to find ways to get green cards through family ties,” says Sean Rhaman, attorney for training and capacity building in CUNY Citizenship Now.

He added that there are many ways in which a person can qualify for permanent or temporary legal status in a country.

Way of entry and exit

The way you enter the country can affect the process of obtaining a residence permit. Those who have been admitted by parole can apply for a change of status while in the country. Anyone without a legal entry record or parole will most likely have to leave the country and report to a US consulate abroad.

All persons leaving the country will be required to pass through checkpoints where a transport security officer (TSA) will check their passports. Those without a visa in their passport (meaning they are undocumented/or overstayed) may be taken aside and a Customs and Border Protection (CBP) officer will determine detention and/or removal procedures.

“When you are at the border, you always have limited rights. It is rare that someone is detained while trying to leave. If you have a criminal warrant, you can be arrested. If you overstay your stay, you are unlikely to be delayed, but your departure will be marked electronically in a variety of ways. While there is no formal “exit visa” requirement in the United States, the government collects data from airline records and entry passport scans in a neighboring country,” says Lenny B. Benson, professor emeritus of immigration law and human rights in New York.

If you leave the country and are detained at the airport, but your status is constantly changing, Rhaman recommends that your "lawyer present it to Immigration and Customs Enforcement (ICE) as soon as possible."

Green Card and Deadlines

Application processing time may vary. For example, Benson said that for marriage-based visas, the process may depend on two components. “Firstly, whether your immigration category is subject to a quota. Some categories of immigration do not have delays. For example, marriage to a US citizen. But marriage to a lawful permanent resident or derivative immigration status (your spouse is immigrating through a family or employment sponsor) means you could be subject to quota delays,” he said.

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Unless Congress passes legislation similar to the Immigration Reform and Control Act of 1986 (IRCA), which granted amnesty to millions of immigrants eligible to remain in the United States for a specified period of time, there is no direct answer to the question of how an undocumented immigrant can correct your status and how long the process will take.

United States travel ban

Under immigration code 212(a)(9)(B)(ii), individuals who have resided in the United States after their period of stay authorized by the Department of Homeland Security (DHS) has expired (for example, on an expired tourist visa) will accumulate illegal stay. Those who accumulate up to 180 days of illegal stay, but less than a year, will be banned from entering the United States for three years. Those who accumulate more than 365 days will be restricted from entry for ten years.

There are many reasons why a person will not be able to leave the country - as was the case at the beginning of the pandemic, when airports were closed. However, USCIS often requires and recommends an extension so that your future travel is not at risk.

A permanent ban, Rhaman explained, occurs when a person who has been barred from entry (such as a ten-year ban) re-enters the country illegally. "There is a form called I-212 (Application for Permission to Reapply for Entry into the United States Following Deportation or Removal), which is something like permission to re-apply after expulsion,” said Rhaman.

Benson said there are two exceptions to the travel ban:

Waiver of the right to return as a nonimmigrant: see INA § 212(d)(3). This only works for a temporary return. This process requires careful adherence and may take some time. You will need to show why your return is for a bona fide temporary purpose only.

Waiver of immigrant rights: See INA §212(a)(9)(B)(v). This section allows you to opt out of the ban if your spouse or parent is a lawful permanent resident (green card holder) or US citizen. Having US citizen children is a factor, but not sufficient. Cm. criteria and procedures.

Work visa for undocumented immigrant

“Some people are eligible for a non-immigrant work permit visa, such as a person who is a citizen of a country with which we have an investment and/or trade agreement. Some people may be eligible for a special Temporary Protected Status or TPS. Each person has a unique situation and should seek individualized legal advice,” Benson said.

There are certain categories of work visas that require individuals to apply for a sponsor prior to their entry into the United States. These are temporary categories that can also be expanded by the employer. Individuals who are already in the country can also apply for certain work visas that suit their requirements, talent, career, etc. Sometimes this also depends on the interests of the country.

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Some individuals may still be allowed to work in the US if they do not have a sponsor. But they are eligible for an Employment Authorization Document (EAD) in certain categories such as DACA (this is a United States immigration policy that allows certain persons with illegal stay in the United States after they were brought into the country as children, obtain a renewable two-year grace period against deportation (you can also qualify for a U.S. work permit) or temporary protection status (TPS). These categories allow eligible individuals to apply for a work permit while their status is active.

“Generally, provisions on who is eligible for a work permit are contained in 8 CFR § 245A.12. There are categories of people who can get a work permit due to special circumstances, for example, Afghans and Ukrainians who have received a parole, persons who have received a “delay”, asylum seekers whose application is pending within the required period of time, etc. There is no universal work permit,” Benson said.

U visa

Passed along with the Victims of Violence and Trafficking in Persons Act of 2000, the nonimmigrant U visa is for immigrants who have been victims of psychological and/or physical abuse and have cooperated with law enforcement. Some of the crimes include rape, kidnapping, extortion, incest, etc.

“The criteria for a U-visa is not to have an inadmissibility violation, and in order to be admitted, you must have legal recognition. Form I-192 will help you overcome the issues of inadmissibility,” Rhaman said.

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