Legal Options for Undocumented Immigrants Wishing to Stay in the U.S.
Legal Options for Undocumented Immigrants Wishing to Stay in the U.S.
Undocumented immigration, sometimes referred to as illegal immigration, is a hot topic these days. The solutions to the issue will vary depending on who you ask, however, for those who are living the experience of being an undocumented immigrant, the mass amount of proposed solutions can bring feelings of uncertainty.
There are a lot of undocumented immigrants living in the United States. According to the Pew Research Center, 11 million undocumented immigrants were living in the U.S. in 2015. The numbers have been gradually falling in recent years, as Pew estimated that there were 11.3 million undocumented immigrants in 2009, with the population having peaked at 12.2 million in 2007. Finally, in 2015, the undocumented immigrant population accounted for 3.4% of the total U.S. population.
However, there is another piece of the data that is particularly interesting. The percentage of undocumented immigrants that have been here for more than ten years is growing. In 2014, 66% of undocumented immigrants had been residents of the United States for over ten years, with only 14% residing here for less than five years. In 2005, 41% of undocumented immigrants had been here for over ten years whereas 31% had been here for less than five years.
Why is this data so significant? It means that the undocumented population is stabilizing. More of the undocumented immigrants in the United States have already established lives here while fewer undocumented immigrants are coming into the country. More importantly, there is an increasing population of undocumented immigrants for whom legal residency would be the best path forward.
Options available for undocumented immigrants is a complicated issue that can have a profound impact on the lives of families, many of which are a mixture of citizens, legal residents and undocumented immigrants. Therefore, think of this guide as a starting point. It is not meant to replace the urgency of a qualified immigration attorney for undocumented immigrant concerns, but instead, should be seen as the first step along a path towards legal residency.
Marriage to a U.S. Citizen or Lawful Permanent Resident
Many people have heard the term “green card marriage,” in which a person at risk of deportation marries a citizen to gain legal resident status.
We would NEVER advise entering a sham marriage just for the sake of gaining legal residency. However, if you are part of a legitimate partnership where one partner is a legal resident or citizen and the other partner is undocumented, marriage may be the best path forward for your family.
However, there are still some legal hurdles when entering a marriage. These hurdles can get more challenging that longer someone has been residing in the United States without proper documentation.
By law, the spouse must complete the process from a consulate outside the United States. This process is rather straightforward for immigrants who have not yet entered or resided in the United States illegally. However, if the partner is an illegal immigrant, leaving the United States and then entering again is risky.
On paper, the law states that if you spent over six months but less than a year illegally in the United States, you must spend three years outside the United States before you can legally enter again, regardless of your marital status. If you have spent more than a year illegally in the United States, you must spend ten years outside the country before you can return. Obviously, for those in a legitimate familial relationship, these penalties are extremely harsh and as such, might encourage a mixed partnership to maintain its current undocumented status rather than go through legal channels to acquire a green card.
Because these penalties and processes can be so damaging to families, the United States has begun to offer waivers to the penalties. However, there are certain risks associated with obtaining waivers as well. Traditionally, these waivers were only available if applied for at a consulate outside of the United States. That meant applicants had to leave the United States and then hope that their application was approved.
To ease this process, the United States began offering provisional waivers that aliens can obtain while remaining the United States. The interim waiver serves as a kind of pre-approval. This waiver is not final as ultimate approvals are still contingent upon a consular review outside the United States. However, if the applicant is honest in their application for a provisional waiver, they can feel relatively confident that they will receive approval once they officially apply at the appropriate consulate.
Penalty waivers are designed to help families stay together, and so they are typically awarded to those who can prove “extreme and unusual hardships” as a result of deportation. Relevant medical conditions, family ties, extreme conditions in the place that the person currently holds citizenship in, as well as other conditions could serve as grounds for a penalty waiver.
Keep in mind, a false marriage — including one performed before any prior marriages are legally terminated — could result in a felony charge. Marriage to a U.S. citizen or permanent resident is only an option for those with a genuine relationship. You should contact an attorney before making any quick decisions.
Many undocumented immigrants in the United States come here because the conditions in their home country are so severe that their lives are at risk.
If this is the case, asylum may be a possible avenue for achieving permanent residency. However, to do so, you must meet a certain set of clear criteria.
- You are present in the United States, whether as a legal resident or as an undocumented immigrant.
- Past persecutions make you either unable or unwilling to return to your home country, or you have a sincere and well-founded fear of future persecution if you do return.
- You are being persecuted for one of five potential reasons, your religion, your race, your nationality, your membership in a particular social group, or your political opinion.
- You are not involved in any disqualifying activity that would eliminate asylum as a possibility.
If you think you meet these criteria, contact an immigration attorney who can help you process your case. If granted asylum status, you will be eligible for a green card one year after your approval, with citizenship an option four years later.
Even though there are risks when seeking a path to citizenship an attorney can help you to determine the best strategy. An experienced immigration lawyer will help you weigh your chances for being granted asylum status. Furthermore, asylum is one of the most direct and secure paths to citizenship for an illegal alien, making it the best option for those who are qualified.
Just because an undocumented immigrant was involved in a crime does not mean that they were perpetrator — many are victims as well. However, out of fear of deportation, many undocumented immigrants will not report violence committed against them.
In the year 2000, the U visa program was created to protect the victims of crimes. If a victim cooperates with authorities when they are victims of certain crimes, they can be granted legal status and a work authorization. However, there are limits, and a path to green card status is only possible under certain circumstances.
To qualify for a U visa, a victim must have been a victim of a qualifying crime, must have information that is relevant to the investigation of that offense, must have been helpful or is likely to be helpful in the investigation of the crime and the crime must have been a violation of U.S. laws.
According to U.S. Citizenship and Immigration Services (USCIS), some qualifying crimes are abduction, domestic violence, extortion, false imprisonment, rape, trafficking, and manslaughter. A qualifying crime is also categorized as any offense that is relatively similar or involves a conspiracy to commit a crime.
Family members of those awarded a U visa may also qualify for a U derivative visa.
To apply, you must present a certifying statement from law enforcement, or in some cases a statement from a judge or child protective services.
Contact an attorney first, however, as contact with law enforcement does not guarantee a U visa, in which case, you may be increasing your risk of deportation.
If you have served honorably in the military, you are qualified for citizenship. However, you must have served in a qualifying conflict, and you must have enlisted while on U.S. territory, including the Canal Zone, Swains Island or American Samoa or you can join while on a non-commercial U.S. ship.
If you served in World War I, World War II, the Korean War, the Vietnam War, the Persian Gulf War, or Operation Enduring Freedom (Afghanistan and Iraq), you are automatically qualified for U.S. citizenship.
In 2014, the Pentagon began granting exceptions to individuals with in-demand and highly specialized skills — often a proficiency in a language that is beneficial to the military but with few American speakers — and the person must have arrived with their parents when they were under 16 years old. This program works in conjunction with President Obama’s Deferred Action for Child Arrivals (DACA) program.
According to USA Today, between 1.2 and 2.1 million teenagers or young adults qualify under DACA, while the Pentagon has capped admittance of undocumented recruits at 1,500 annually.
There are however cases in which an illegal immigrant did enlist and served honorably without being caught. In such a case, this person would be granted citizenship, regardless of immigration status. However, if caught, they would be discharged and then deported. The latter scenario is far more likely, so visiting a recruitment center isn’t a good idea unless the person has achieved DACA status. Therefore, the best plan of action is to contact an attorney to discuss your options.
Cancellation of Removal
Finally, for those at risk of being deported, a green card may be granted through a court proceeding known as “cancellation of removal.” However, this is only available to those who are already in immigration court and are thus already facing deportation. Cancellation of Removal does not get granted to someone who comes forward seeking such dispensation.
To qualify, the individual must have resided in the United States continuously for ten years or more. Additionally, they must prove that deportation would cause “exceptional and extremely unusual hardship” to a close family member who is a legal resident or U.S. citizen. Finally, the individual must present “good moral character,” and not have a history of being convicted of any previous crimes. Still, the granting of a “cancellation of removal” is contingent upon the discretion of the judge.
In this sense, this is the last resort of someone who is otherwise very likely to be deported. It is not something that any illegal immigrant should depend on or expect. However, if you are at such a risk and you feel that this is your only option, hiring an experienced immigration attorney will increase your chances, as they will have argued such cases in the past and will know how to work within the system to make such a status a possibility.
Where to Turn for an Immigration Attorney in Texas
According to the Pew Research Center, in 2014 there were 1.6 million undocumented immigrants in Texas alone. These immigrants accounted for 6.1% of the undocumented population of the United States and ranked second among U.S. states behind only California.
In other words, Texas is a state with a desperate need for a good immigration attorney for illegal aliens.
Luckily, Morales & Sparks PLLC is one such firm. We have experienced immigration lawyers for aliens in Texas. We are sensitive to the immigrant experience, whether undocumented or not. At Morales & Sparks, you will be treated like family and represented like family.
We know immigration law is scary and daunting, especially for undocumented immigrants. That’s why you need someone to listen to your situation which is not only qualified but compassionate. That’s what we stand for here at Morales & Sparks. We listen to you, and we truly hear you. We are also tenacious when we fight for you and have an incredible record of success.
If you are in Texas and find that you want to explore your options for obtaining legal residency or you are at risk of being deported and thus need an experienced Texas lawyer for illegal aliens, contact us today.
Disclaimer: The purpose of this post is to provide general information and is not to be constituted as legal advice. If you need help with a specific issue, please seek the advice of an attorney.