Entering the United States without proper authorization is illegal, as is overstaying a properly issued visa.
Because these actions are both considered illegal, they do make it a lot harder for undocumented individuals to obtain a green card. There are very few options to go from illegal status to legal status, but we will outline the basics here. If you are an undocumented individual currently living in the United States and are hoping to submit a green card application, you may wish to consult with an immigration attorney first. Understanding your options is the best route to success.
Are You Eligible to Submit a Green Card Application?
As stated, it is very difficult, except in extreme circumstances, to obtain permanent residence via a green card if you originally entered the country illegally. But if you have overstayed your visa or have a change of status, your chances are a bit better. Below are additional facts you should know.
- Marriage to a United States citizen – If you can prove a bona fide (real) marriage to a current U.S. citizen, you may be able to submit a green card application if you originally entered the country legally on a visa. Even if that visa has expired, you may be able to qualify for an exemption. However, if you originally entered illegally, even a marriage is likely not enough to allow you to stay in the country.
- Apply to the Consulate in Your Home Country: You may have better luck if you leave the United States and return to your home country to submit your green card application. However, you will be penalized for your time spent illegally in the U.S., and will have to wait for a time before you will be allowed to enter legally. If you stayed in the United States for six months or more, you will have to wait 3 years to reapply for entry; and if you stayed in the U.S. for over 1 year illegally, you will not be barred from returning for a period of 10 years.If you have been in the United States illegally for less than six months, you might want to leave right away and submit a green card application with the consulate in your home country. This will give you the best chance of obtaining a green card even if you are here illegally.
- Cancellation of Removal: If you are detained by immigration authorities and meet certain criteria, you may be eligible to file for a cancellation of removal. These criteria include being in the U.S. for over 10 years with a clean criminal record, as well as being able to prove that it would cause extreme hardship to other members of your family (elderly, spouse, or children) if you are removed. It is important to note that these cancellations cannot be applied for on your own. They can only be requested if you are already in USCIS custody. Do not attempt this option without speaking to an immigration attorney.
- Asylum or Temporary Protected Status – If you are in the United States without authorization yet can prove extreme circumstances, you may be allowed to stay legally. These circumstances include fleeing persecution (asylum) – or a natural disaster, or civil war. (TPS) It is important to note that you can submit a green card application after being granted asylum, but not if you are given TPS status. However, TPS does allow you to legally remain (usually for 18 months) during which time you can apply for a work visa.
Notable Exemption/Military Service: if you served honorably in the United States armed forces during any number of eligible armed conflicts, you may generally become a U.S permanent resident without normal necessary channels. (Read more on the USCIS website)
Because every immigration case is different, it is imperative that you have the expert advice of an immigration attorney to help guide you – and to give you the best opportunity to win your permanent residency. Call Probinsky & Cole today to ask any Sarasota or Tampa immigration questions you may have. We can help.
