Legal Options for Undocumented Immigrants to Stay in the U.S.

The number one destination for migrants in the world continues to be the U.S., with 20% of the world’s migrants living in the U.S. as of 2017.

We have a long history of immigration. We also have a long history of political and public debate on immigration. Are immigrants a valuable resource or a major challenge? The 2016 election and the Trump administration’s actions have raised the political and public debate on immigration to a fevered pitch.

While I’m not an immigration lawyer, I am a lawyer in the state that is the Number 2 destination for immigrants (both authorized and unauthorized), and I get asked immigration questions a lot. And the circumstances are usually pretty heart-wrenching.

Chances are you know someone who entered the U.S. without approval or stayed in the U.S. without permission after their visa or other authorized stay expired. Or perhaps this describes you.

I don’t want to enter into the immigration debate. There are plenty of other places on the internet to discuss policy, and frankly, it’s a quagmire outside the scope of this blog’s purpose.

As always, I want to keep the focus on practical information that is helpful to readers faced with a legal issue. With that in mind, I am going to discuss the legal options available to someone who is undocumented (illegal) and wants to stay in the U.S..

The short answer is there are very few legal options to go from being an undocumented (illegal) immigrant to a U.S. permanent resident (green card holder). And there are long processing delays of applicants. Believe it or not, the U.S. government is still processing some family-sponsored visa applications dating to October 1994. 1994 folks.

While I am going to discuss the few options that are available, the most important thing I want you to take away is that you must consult with a good immigration attorney. Perhaps even more than one. Immigration law is very complex. And even good attorneys can have a difference of opinion as to the best course of action. If you can’t afford an attorney, contact your local bar association for a referral.

Option 1: Marriage to a U.S. Citizen

The “let’s get married for a green card” was a popular sitcom storyline. Remember Rosario (i.e. Karen’s maid) marrying Jack in Will and Grace to secure her green card?

Forgot about it. Don’t even think about entering a sham marriage. It’s a felony (for both parties).

So assuming it’s a real marriage with a U.S. citizen, the undocumented spouse, in theory, is eligible for a green card. But your current status can create a host of issues.

Are you in the U.S. illegally because your visa or other authorized stay expired? Good news. You should be able to apply for a green card without leaving the the U.S. using a procedure known as “adjustment in status.”

Did you cross the border in secret without stopping for inspection? You have very little chance for adjusting your status to permanent resident based on your marriage. You also must complete the process from a consulate outside of the U.S., meaning you have to leave the U.S. And the consulate will penalize you based on how long you have been in the U.S. illegally (180 days if you have been in the U.S. for more than six months, but less than a year, and 10 years if you have been in the U.S. for longer than a year).

If you are in this category, talk to an immigration attorney as soon as possible. You may qualify for a waiver if your being denied a green card would cause an extreme hardship to your U.S. citizen family members. But keep in mind, this waiver is very hard to get.

Option 2: Service in the Military

If you have served honorably and on active duty in the U.S. Armed Forces during certain wars and conflicts, you are allowed to apply for U.S. citizenship. The wars and conflicts include the Person Gulf War and the current war on terrorism.

Option 3: Asylum

You can apply for the right to stay in the U.S. if you can show that you have been persecuted or fear persecution in your home country based on your race, religion, nationality, political opinion, or membership in a particular social group.

This too is extremely hard to get. Most of the immigrants from Central and South America claiming asylum don’t get it.

Option 4: Temporary Protected Status

If you come from a country that recently had a civil war, environmental or natural disaster, or other trouble that makes it unsafe for its people to return there, may qualify for Temporary Protected Status.

Please note that this is not a green card, nor does it lead to a green card. It just means the U.S. won’t deport you and will allow you to work legally for a set amount of time (maximum 18 months).

Option 5: Cancellation of Removal

This one is a last resort if you have already been arrested by immigration authorities and you are at risk for deportation. To qualify for a “cancellation of removal,” you must have lived in the U.S. continuously for ten years or more, prove that your deportation would cause an extreme hardship to your family, and present “good moral character” and not have any criminal convictions.

How does immigration impact your life? Leave a comment or send me an e-mail.

Disclaimer: This website is made available for educational purposes only as well as to give general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and the publisher. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.