Waiting for Comprehensive Immigration Reform – What Actions Can the Overstay/Undocumented Take in the Meantime?

Published: January 20, 2009

So, you have made the decision that being in the U.S. without legal status is better than being in your home country with all the legal status in the world. And you continue to hope that President Obama can advance his goal of comprehensive immigration reform and that your particular circumstances will be covered by some prospective legislation. While we await such legislation, are there measures the overstay / undocumented foreign national can take to “legalize” their status and obtain U.S. lawful permanent residence (a.k.a. obtain a green card)?

For the Visa Overstay

With the exception of individuals who entered the U.S. on a K (fiancé) or “Crewman” visa, visa overstays are generally eligible to apply for “Adjustment of Status” and undergo permanent residence processing in the U.S. (without having to return to their home country) under the following circumstances:

  1. You marry a U.S. citizen or a lawful permanent resident who becomes a U.S. citizen,
  2. you are under 21 years old and you are the child, or step child (as long as step relationship was established prior to your 18th birthday) of a U.S. citizen or a lawful permanent resident who becomes a U.S. citizen, or
  3. you are the parent of an over 21 year old adult U.S. citizen.

Additionally, if you were the subject of any type of family preference or employment/labor based immigration application submitted prior to April 30, 2001, or in some cases, January 14, 1998 (pursuant to INA Section 245(i)), you will be able to eventually complete all permanent processing in the U.S. via Adjustment of Status, upon visa availability.

For the visa overstay seeking permanent resident processing in the U.S. by way of a new job offer, things are much more complicated. First, you must be “grandfathered” under INA Section 245(i) – which means you or one of your parents must have been the subject of some sort of family or employment/labor based immigration filing submitted prior to April 30, 2001 or January 14, 1998. Then, you must find an employer to file paperwork on your behalf; this employer will likely be required to demonstrate the unavailability of U.S. workers to fill the position at issue (there are a few exceptions for some professions, such as Registered Nurses and Physical Therapists). From there, you will be looking at a wait of at least a few years toward even an employment authorization. So, employment based avenues are indeed viable for the overstay, just challenging in terms of logistics and time.

For the Foreign National Who Entered the U.S. “Without Inspection” or “EWI”

Simply put, you must be covered by INA Section 245(i) as described above. If you are covered by Section 245(i), the avenues available are identical to those available for the visa overstay. If you are not covered by 245(i), then all you are left with is waiting for immigration reform, or taking a chance at a visa processing at a U.S. consular post in your home country.

The most common EWI risk-taking scenario involves the EWI who marries a U.S. citizen and, as opposed to waiting for immigration reform, he elects to undergo immigration processing at a U.S. consular post in his home country. In order for the EWI to be granted the immigrant visa to reenter the U.S., he must be granted a “waiver of inadmissibility”. You see, those who are in the U.S. without status and depart, generally face a multi-year (up to 10 years) bar to reentry, unless U.S. Department of Homeland Security grants a waiver (plain English – forgiveness) based on the extreme hardship the U.S. citizen spouse and/or parent may face in the event the foreign national is denied a visa. The grant of a waiver is anything but certain, and the result depends entirely on an immigration officer’s assessment of whether the level of hardship presented is “extreme” enough. Furthermore, the parties will never know the answer in advance of the foreign national departing and appearing at the U.S. consular post.

In Removal Proceedings

If you are unlucky enough to be placed in removal proceedings, most of the above rules continue to apply, and your fight to remain in the U.S. will depend on whether you fit into any of the above classifications. BIG EXCEPTION: For those who:

  1. have been in the U.S. for more than 10 years – either as an overstay or EWI ,
  2. have a U.S. citizen or lawful permanent resident spouse, child or parent,
  3. are of good moral character and
  4. can demonstrate that their forced departure will cause “exceptional and extremely unusual” hardships to one or more of their U.S. family members, a defense to removal (known as Cancellation of Removal) and a green card, may be within reach.

Certainly #4 is not an easy standard to satisfy, but at the very least, those who are threshold eligible will have their day in court and a chance for thorough due process. (Note: visa overstays and EWI’s may also have other forms of relief available in removal proceedings, such as political asylum.)

The above discussion is certainly not exhaustive, but it does cover the most common scenarios facing foreign national visa overstays or EWI’s. For the most reliable and conclusive feedback in your particular set of circumstances, it is advisable to seek reputable legal counsel.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois