Undocumented Immigrants: How to Get Legal Status in the United States

If you’re in the United States illegally – meaning you came to the country without proper documentation – you face serious penalties if immigration authorities catch you. In fact, you could be deported and barred from re-entry, which means you can’t come back to the U.S., even if your family is here and you’re a foreigner in your country of origin.

However, there is help for undocumented immigrants in the United States. You may be able to get legal status that keeps you in the U.S. with your family and friends.

Help For Undocumented Immigrants: Getting Legal Status In The U.S.

Undocumented immigrants – sometimes called “illegal immigrants” – don’t have many options for lawful permanent resident status. An undocumented immigrant is an immigrant who has no actual legal immigration status. An undocumented immigrant may have entered the United States with a valid non-immigrant visa at one time, such as a tourist visa or a student visa, but the visa has since expired. Other undocumented immigrants may have entered the U.S. without inspection in the first place. That’s categorized as EWI or “entered without inspection,” and it means that they never interacted with a U.S. border agent when they came into the country. U.S. immigration law is very clear about following the proper channels when visiting or moving to the United States.

Most undocumented immigrants (62 percent) are present in the U.S. after overstaying a visa, although about 38 percent had illegally crossed the northern or southern border. Regardless of how you arrived in the United States and whether you had a visa, the results are the same: being unlawfully present in the country is grounds for deportation with a bar to re-entry.

What Is A Bar To Re-Entry?

If U.S. customs officials discover that you have been unlawfully present in the United States, no matter how you came to the country, you can be barred from re-entry. While there are some exceptions, such as those for asylum applicants, battered women and children, and victims of severe human trafficking (as well as exceptions for minors), most people will be banned from coming back to the U.S. for at least 3 years.

3-Year Bar To Re-Entry

Aliens who were unlawfully present in the U.S. for between 180 days and 1 year, but who left voluntarily, are subject to a 3-year bar to re-entry.

10-Year Bar To Re-Entry

Aliens who were unlawfully present in the U.S. for 1 year or more, but who left voluntarily, are subject to a 10-year bar to re-entry.

Permanent Bar To Re-Entry

Aliens who were unlawfully present in the U.S. for 1 year or more and were subject to a 10-year bar cannot try to re-enter the country illegally. If a person tries or succeeds at coming back to the U.S. illegally, he or she is subject to a permanent bar to re-entry.

Amnesty For Undocumented Immigrants

Amnesty is the practice of allowing an undocumented immigrant to stay in the United States legally. There are two types of amnesty for undocumented immigrants: asylum and temporary protected status.

Asylum

You can apply for asylum in the U.S. if you qualify, as long as you apply within a year of your entry or the expiration of your authorized stay.

In order to apply for asylum, you have to show that you’ve been persecuted – or that you fear future persecution in your home country – based on your religion, race, nationality, political opinion or membership in a certain social group.

Temporary Protected Status

You could be eligible for temporary protected status in the U.S. if you come from a country that’s recently had an environmental or natural disaster, a civil war, or any other issue that makes it unsafe for you to return. Temporary protected status, or TPS, doesn’t lead to a green card, and it’s only good for up to 18 months. However, you can receive a work permit and explore other options toward a more permanent status during the time you’re in the U.S.

Cancellation Of Removal

Some people who are arrested by immigration authorities can qualify for cancellation of removal – but it’s not an option available to everyone. You can only use this option if you’re already in removal proceedings, and you only qualify for cancellation of removal if you and your lawyer can prove that you met all of the following requirements:
• You have been physically present in the U.S. for at least 10 years.
• You are a person of good moral character and have been for at least 10 years.
• You aren’t disqualified due to the commission of a crime or immigration violation, or because you have persecuted others.

You must also show that your removal from the U.S. would create an exceptional and “extremely unusual” hardship to your spouse, parent or child, provided that your spouse, parent or child is a U.S. citizen or lawful permanent resident.

This is one path that absolutely requires the service of an experienced immigration attorney. To argue against deportation is no easy task.

What Is A Provisional Unlawful Presence Waiver?

In some cases, certain immigrants who are related to citizens or lawful permanent residents, can apply to request a provisional waiver of their unlawful presence if the bar they are facing is unrealistic and would negatively impact their U.S. citizen or permanent resident relative for no justified reason. These waivers make it possible for the those in the U.S. illegally to stay in the states during the green card application process. Without this waiver, they would have to leave the country for the period of time they are barred before they could apply for permanent residency. This isn’t a guaranteed waiver and anyone considering applying for a provisional unlawful presence waiver should absolutely talk to a lawyer who is very familiar with immigration law.

What Is A U Visa?

Congress enacted U visa provisions in 2000 in order to allow undocumented immigrant victims of certain crimes to get legal status for four years. The U visa allows certain victims who are undocumented to legally stay in the U.S. provided they work with law enforcement agencies. Since it’s important to have the trust of undocumented immigrants when they are victimized, the U visa benefits both the undocumented immigrant and law enforcement. In order to be eligible, the undocumented must first have been the victim of a qualifying crime or have witnessed a qualifying crime. Qualifying crimes include the following:

• Blackmail/Extortion
• False Imprisonment/Kidnapping/Unlawful Criminal Restraint/Being Held Hostage
• Felonious Assault/Torture/Domestic Violence
• Female Genital Mutilation
• Fraud in Foreign Labor Contracting
• Involuntary Servitude/Peonage
• Obstruction of Justice/Perjury/Witness Tampering
• Murder/Manslaughter
• Rape/Sexual Assault/Sexual Exploitation/Prostitution/Incest
• Slave Trade/Trafficking
• Stalking

In addition to the temporary U visa benefits, U visas also offer a potential path toward permanent resident status. There is a procedure to follow and not everyone will qualify. If you are an undocumented immigrant who may qualify for a U visa, it’s important to speak with a knowledgeable immigration attorney.

Prior Service In The U.S. Military As A Path To Citizenship

Current or former U.S. military service members who are undocumented immigrants may qualify for relief in some cases. If you enlisted in the U.S. military while you were on U.S. territory or in the U.S. and you served in a certain conflict, you could be entitled to remain in the U.S. and gain immediate citizenship. You must have served in one of the following conflicts:
• The Korean War (June 25, 1950 to July 1, 1955)
• The Vietnam War (February 28, 1961 to October 15, 1978)
• The Persian Gulf War (August 2, 1990 to April 11, 1991)
• Operation Enduring Freedom (September 11, 2001 to present)

While undocumented immigrants are usually barred from serving in the military, some currently undocumented immigrants have served in the past. They believed their service would be an automatic path to citizenship, but it’s actually a path with significant roadblocks.

In reality, over 2.000 veterans of the U.S. military have been deported. While they may have entered the country legally and served legally, there were still barriers to naturalization that have caused these veterans to violate terms and end up with an undocumented status by staying in the country.

For some, an honorable discharge was not enough to prove the “good moral character” needed for permanent residency. Other veterans failed to follow through on their green card applications because they were deployed or because they thought by enlisting, it meant they would be given automatic citizenship. While they enlisted to earn citizenship, the promise of citizenship didn’t pan out.

Why Can’t You Marry A U.S. Citizen?

In some cases, marrying a U.S. citizen can get you “immediate relative” status that makes you eligible for a green card. However, you can only take this route if you enter into a valid, bona fide marriage with a citizen. If you’re only marrying for the immigration benefit, U.S. Customs and Immigration Services will find out and you will be removed from the country.

Additionally, this option is only available to people who entered the United States legally on a valid visa. If you entered the U.S. illegally, your chance of being able to adjust your status is very slim.

What About DACA?

September 2023, the U.S. District Court for the Southern District of Texas issued a decision that DACA is unlawful. While DACA renewals are still allowed, at least for now, first-time DACA filings aren’t allowed to be processed. The current processing time for DACA renewals is between three and 18 months.

Are You An Undocumented Immigrant Who Needs To Get Legal Status In The U.S.?

We know that undocumented immigrants face social isolation and risk separation from loved ones. If you’re an undocumented immigrant who needs to know how to get legal status in the U.S., we may be able to help you. We have helped other immigrants and immigrant families get legal status.

This is not something you should ever attempt without the help of a lawyer who knows the ins and outs of immigration law. Call us today to set up your consultation with an experienced professional who can give you the legal guidance you need.