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Your Unlawful Presence Is Not a Complete Bar to US Immigration

The most current surveys show that immigrants and their U.S. born children now number approximately 86.4 million people, or 27% of the overall U.S. population. Of those 86.4 million people the Department of Homeland Security estimated in 2016 that 11.3 million were unauthorized immigrants. According to Tom Nassif, President of the Western Growers Association, out of California’s more than 2 million farm laborers, 1.5 million are undocumented. In 2014, unauthorized immigrant adults had lived in the U.S. for a median of 13.6 years. About two-thirds (66%) of adults in 2014 had been in the U.S. at least a decade, compared with 41% in 2005.

What Is a Green Card (Permanent Residence)?

A green card, or permanent residence, allows an immigrant to live and work in the United States for the rest of his or her life. For many people, obtaining a green card is the first step in the road to U.S. citizenship. Adjustment of status is the process that is used to apply for lawful permanent resident status (Green Card) while being present in the U.S. A foreign national is barred from adjustment of status if the foreign national is in an unlawful immigration status on the date of filing the adjustment application.

Those Present In The US Unlawfully Risk Being Barred From Reentry Into The US For 3 Or 10 Years After Departing From The U.S.

Unlawful presence is the period of time when a noncitizen is in the United States without being admitted or paroled or when they are not in a “period of stay authorized by the Secretary.” A noncitizen may be barred from reentering the U.S. after accruing a specified period of unlawful presence, leaving the United States after accruing the unlawful presence, and then seeking readmission.

· A noncitizen is barred from reentering the US for 3 years after accruing more than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings.

· A noncitizen is barred from reentering the US for 10 years after accruing one year or more of unlawful presence during a single stay, regardless of whether they leave before, during, or after removal proceedings

· A noncitizen is barred from reentering the US permanently, if they reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

If one or more of the unlawful presence bars applies a noncitizen cannot obtain a visa from the U.S. Department of State, enter the United States at a port of entry, or obtain an immigration benefit such as adjustment of status (Green Card) in the United States without first obtaining a waiver or another form of relief. This implies that the two-thirds of unauthorized immigrants that have been present in the U.S. for a median of 13.6 years are permanently barred from reentering the U.S.

Persons Unlawfully Present In The US And Married To A US Citizen May Adjust Status In The U.S. Or Obtain A Provisional Unlawful Presence Waiver Allowing Them To Obtain An Immigrant Visa.

Overstay Spouses of U.S. citizens who remained in the U.S. past the duration of their prior lawful admission are eligible to adjust status to permanent resident status in the U.S. The Spouse of a U.S. citizen that entered the U.S. without inspection (EWI) is not able to adjust in the U.S. and must obtain an unlawful presence waiver that waives their inadmissibility due to the noncitizen’s presence in the U.S. The 601A waiver is established under INA § 245(a). Only after successfully applying for a waiver, and departing & returning to the U.S. with an immigrant visa can the noncitizen obtain a green card in the U.S.

However, this waiver is limited to spouses of U.S. citizens and does not waive the noncitizen’s order of deportation or removal. This requires a separate I-212 waiver and the noncitizen must depart the U.S. and ask for consent to reapply for admission to the U.S. before they can lawfully return to the United States.

Persons Unlawfully Present In The US And Granted Temporary Protected Status Are Considered Lawfully Present During The Duration Of Their TPS Allowing TPS Holders To Adjust To Permanent resident Status.

TPS provides lawful status for those unlawfully present in the U.S. during the duration of their TPS. In the 9th and 10th Federal Circuits TPS provides a noncitizen the status of being lawfully inspected and admitted allowing them to adjust to permanent resident status allowing them to apply for a green card and ultimately citizenship.

However, this ability to adjust to permanent resident status is limited to two specific scenarios: (1) Marriage to a U.S. citizen, and (2) Employment-based green card sponsorship. This is due to the fact that other methods of adjustment penalize the petitioner for their prior period of unlawful presence. Whereas, that unlawful presence is excused for spouses of U.S. citizens, and employment-based green card sponsorship only considers the period after lawful admission when determining if unlawful presence has accrued.

Deferred Action For Childhood Arrivals Is Available For Persons Unlawfully Present In The US, But It Does Not Provide A Status Allowing For An Adjustment To Permanent Resident Status.

DACA recipients married to a U.S. citizen that have overstayed their prior lawful admission can adjust their status in the U.S. and obtain a green card. DACA recipients that entered the U.S. without inspection (EWI) are not considered to be inspected and admitted because deferred action is merely an executory reprieve from immigration enforcement. As such, it does not confer a status allowing DACA holders to adjust to permanent resident status. A DACA recipient may still attempt to depart and lawfully reenter the U.S. on advance parole and be able to adjust to permanent resident status. However, advance parole is risky because a parolee can still be denied entry once parole has been granted.

How to Get More Information

These are the general requirements, but some unique situations may require additional steps. For more information contact Litwin & Smith at (888) 344-0892 or visit Green-Cards-Naturalization.

Our South San Francisco naturalization lawyers have successfully guided countless clients through the naturalization process. We have the experience and resources necessary to prepare all applicable paperwork, comply with filing requirements, ensure clients are prepared for English and civics tests, and complete all other aspects of the legal process.

Contact an Immigration and Naturalization Lawyer

Contact one of our knowledgeable and experienced immigration law attorneys at Litwin & Smith to discuss your needs.

Please visit our Immigration Articles page for a full listing of detailed articles regarding immigration and naturalization law.

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