Millions of individuals and families from many countries dream of a better life and one of their favorite destinations is the United States. While many have entered the U.S. through legal means, there are still millions who are in the country without approval from the government, making their stay illegal. Likewise, those who have entered the country legally whose authorized stay or visa has expired but chose to remain, will be labeled an undocumented immigrant.
An Undocumented Immigrant Under The Trump Administration
President Trump’s administration has a tougher stance against those people considered an illegal and undocumented immigrant. This is a major cause of concern for the millions that remain undocumented. What can they do to reverse their situation? Can they become legal residents of the United States?
During his election campaigns and early days in office, President Trump stated his intention to roll back President Obama’s executive orders, such as the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of Americans and Permanent Residents (DAPA). While he turned his rhetoric into action, issuing travel bans and issuance of visas to citizens of selected countries, courts around the nation have turned back his actions. Many cities and states stated that they are immigrant havens and vow to help protect those with undocumented immigrant status.
Related Article: The Repercussions of The New Immigration Policy of President Trump
Some Legal Rights
Even an undocumented immigrant has a few legal rights under existing laws in the U.S., which the president cannot change. No president has the power to change the U.S. Constitution. Under it, you have the right to refuse to be searched personally or to open your door to someone claiming to be federal agents or police officers.
Even if they have a warrant, you are within your rights not to open the door. Instead, ask the officer to slide the warrant under the door so you can look at it and verify that it is valid and has your address. You see, opening your door at once is giving your consent for the officer to enter your residence.
Moreover, the U.S. Constitution grants you the right to refuse to speak to a law enforcement agent or an immigration officer or answer their questions. You can remain silent or express the wish to have an attorney present. This might not prevent you from being arrested but you will not be forced to give any information as an undocumented immigrant.
You have the right to an attorney and if you don’t have an attorney to handle your immigration issue, you are allowed to find one. Likewise, you must not sign anything without your attorney present.
If you are arrested, you still have the right to a hearing. You can have a hearing in an immigration court before a judge at the Executive Office for Immigration Review (EOIR) and present your defense. It is best to hire an attorney to represent you if you are an undocumented immigrant.
Under U.S. immigration laws, only a few options are available for an illegal or undocumented immigrant to become a permanent or legal resident of the United States. Still, a few options are better than none. Here, I will discuss those possibilities. However, your first recourse is to find an immigration attorney who can explain all the procedures to you.
If you have limited English-speaking skills, seek the help of a professional immigration interpreter. For your non-English documents, find a reliable translation services provider to accurately translate your personal documents from your language into English. You’ll need all the help you can get as an undocumented immigrant.
Related Post: 7 Tips To Choosing an Immigration Lawyer
Marriage To A U.S. Citizen Or LPR
One of the most common options for an illegal, undocumented immigrant to gain legal status is to get married to a U.S. citizen. However, it must be stressed that it should be a real, bona fide and valid marriage. This will make you, under the U.S. immigration laws, an immediate relative. Theoretically, this also makes you eligible for a green card after the application process is done.
If you became an undocumented immigrant because you opted to stay after your visa has expired, it means that you previously entered the country through legal means. This enables you to apply for the green card without leaving the U.S. though the adjustment of status procedure.
But if your entry to the country was illegal from the start, for example, you crossed the border without passing through an inspection point, as an undocumented immigrant, it will be very difficult to change your status to legal permanent resident, even if you are legally married to a U.S. citizen. The only option you have as an undocumented immigrant is if you fall into one of the categories below under Section 245(i).
- A family member or your employer filed an immigrant visa petition/labor certification for you before January 14, 1998 or between January 14, 1998 and April 21, 2001.
- You can show proof of your physical presence in the U.S. on the date this particularly law was passed – December 21, 2000.
You can also get married to a lawful permanent resident (LPR) and be technically eligible for a green card. However, you will have a long wait before your status could be adjusted, unless you fall into one of the two 245(i) categories.
Another way for an undocumented immigrant to become legal is for you to attend the interview for your green card at the U.S. consulate in your home country. This is called consular processing.
However, expect to be penalized for your illegal stay in the U.S. If you stayed illegally as an undocumented immigrant for six months or more, you must spend three years in your home country. If your illegal stay was for one year or more, the penalty is 10 years outside the U.S. Therefore, if your illegal stay in the U.S. is nearing six months, it is best to leave the country immediately to avail of consular processing.
You can explore a provisional waiver (Form I-601A, Application for Provisional Unlawful Presence Waiver) if you are still in the U.S. Once approved, you can return to the U.S. after you pass the consular interview. This provisional waiver applies to a U.S. citizen’s undocumented immigrant spouse and children
It is meant to keep the family united. You must prove that the family will go through “extreme and unusual hardships.” This can include age of the U.S. citizen or the parent or spouse of a permanent resident, family ties to the U.S. and country of removal, the conditions in the undocumented immigrant’s country of removal, length of living in the U.S., relevant mental and medical health conditions, educational hardships and financial hardships. You need the services of an experienced immigration lawyer for this.
Related Post: How Long Does It Take To Become A U.S. Citizen
”DREAMers” (Green Card through Employment)
DREAM stands for Development, Relief, and Education for Alien Minors (DREAM) Act of President Obama. For those DREAMers who have received higher education and are highly skilled, their employers can sponsor them to be a permanent resident through labor certification prior to the filing of an employment visa petition. The loophole here, even if the process is successful, is that the individual, undocumented immigrant because of his/her illegal status, must return to his/her country of origin. It is not a simple process and only an immigration attorney will be able to help you understand the entire procedure.
You can become a legal resident of the United States if you are in the country to seek asylum. Asylum status applies to an undocumented immigrant who suffered persecution in their home country and can face further persecution if he/she were to return. Conditions for persecution: if it is done by the government or by a group that the government cannot or is unwilling to control.
The U.S. immigration law defines persecution into five groups: political opinion, membership in a particular social group, nationality, religion and race.
To be eligible, you must fit these requirements:
- Present in the U.S. (legally or illegally)
- Due to past and future persecution, you are unwilling or unable to return to your home country
- The condition for the persecution falls under any of the five groups
- You are not involved in any activity that will disqualify you to seek asylum
Have your attorney file Form I-589, Application for Asylum and for Withholding of Removal, with supporting evidence. If you receive an asylum grant, you can apply for a permanent resident status one year after its receipt. Your children and your spouse can also apply for a green card if the U.S. admitted them as asylees as well.
Related Post: Green Card Marriage Interview: Processes And Proceedings
U Visa (for Crime Victims)
The Victims of Trafficking and Violence Prevention Act created the U visa in 2000. This visa is for the protection of non-U.S. citizens, undocumented immigrants who were victims of specific crimes and have helped law enforcement agencies. The law is to encourage crime victims to cooperate with prosecutors and police without fear of being deported. If you qualify for a U visa, it entitles you to legal status, which can lead to permanent resident status in some cases as well as employment authorization.
To be eligible for this visa, the undocumented immigrant must:
- Have suffered substantial mental or physical abuse due to being a victim of a defined criminal act;
- Have valuable information regarding the criminal act;
- Be helpful in the prosecution or investigation of the crime; and
- The criminal activity violated the laws of the U.S.
These are some of the options an undocumented immigrant can explore if they want stay legally in the United States. Additional details about the U Visa are available at the USCIS and Citizen Path websites.