New York Lawyer's Legal Updates

Adjustment of Status Based on Marriage After Illegal Entry

Author: New York Immigration Attorney Alena Shautsova

A person who came to the US legally but overstayed his/her authorized time, may, nevertheless, receive a permanent resident status (or adjust his/her status to permanent resident). It does not matter if the entry happened a year ago or twenty years ago. As long as the person was inspected and admitted: used a valid visa to enter the US through a port of entry, or came on a Visa Waiver program, he /she may adjust.

What to do if the person came without a visa? Let’s say by crossing the border? In this situation, the law states that a person cannot adjust: it means that a person would not be able to receive permanent resident status without leaving the country and has to apply for an immigrant visa in a consulate abroad. However, by leaving the country, such a person triggers unlawful presence bar and automatically becomes inadmissible for 3/10 years. Are there any solutions to this situation?

Yes, in some cases, there are solutions, and they depend on the manner of illegal entry; personal circumstances and time the person spent in the US.

A person may illegally enter the US by different means: by crossing the border; or by using someone’s passport or by claiming to be a US citizen.

a). The "crossing the border" is the most common type of illegal entry. In such a situation, usually, the only exception that can be used for a person to adjust status is if this person is the main beneficiary or a derivative beneficiary of an immigrant petition or a labor certification application filed on or before April 30, 2001: so called “grandfathering clause.” This clause may be used even if the principal beneficiary died; or the person who filed for the person died; or the company who filed the LCA is dissolved; or the petition or LCA were withdrawn. It is a great tool to avoid prohibition for adjustment after EWI, but as time passes, there are less and less people who can actually benefit from it. If the person does not qualify for grandfathering exception, he/she will have to leave the US and apply for a waiver of unlawful presence. Since 2013 it is possible to apply for a provisional waiver of unlawful presence I601A: read here

b). Coming to the US by using someone’s passport or misrepresenting information. In this situation, a person is still “illegal” in the country, even though he/she was inspected and admitted. A person may, nevertheless adjust, if he or she obtains a waiver based on extreme hardship to a relative. See here

c). Coming to the US by claiming US citizenship: in this situation, it is almost impossible to avoid deportation and save any hope for adjustment. It is so because the US laws carry severe penalties for unlawfully claiming US citizenship: a person would be permanently inadmissible in the US. Also, unlike with the case of misrepresentation, a person is not considered to be "inspected and admitted". However, there are some defenses to the charges of unlawful citizenship claims, such as timely withdrawal of the claim and honest mistake.

d). There is one instance when a person may adjust his or her status even though the entry to the US was not perfectly legal. It is a situation of a waved -in inspection. A person considered to be “waved – in” when at the port of entry, a CBP officer authorized person’s entry even though a person did not possess valid visa. For example, Ms. M, a citizen of Mexico, traveled with Mr. J, a US citizen by car through US/ Mexico border. A CBP officer inquired Ms. J who was driving, if she was a citizen, and upon positive answer, allowed Ms. J and Ms. M into the US. Under the recent BIA decision, credible testimony by Ms. M would be sufficient to conclude that Ms. M was in fact waved in. Please see: Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014).

Cancellation of Removal For Non -Permanent Residents

When none of the above can be used, than a person may still try his/her chance with a relief called cancellation of removal for non -permanent residents: it may be a good option for those who have lived in the US for ten years and have a qualifying relative. However, to get this relief, a person has to be in removal proceedings: it means that if the ICE has not filed a Notice to Appear against the person, he or she has to request the issuance of the NTA on his/her own, and there is always, always a chance a person might be ordered removed from the US.

05 August 2014
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