There are two different categories of people who are in the United States without authorization. First, there are people who were lawfully “admitted or paroled” and then overstayed their visa or otherwise violated the terms of the admission. Second, there are people who entered the United States without authorization or inspection. Different laws apply to each of these categories of individuals. How a person entered the United States can have a drastic effect on whether they are eligible to get a green card inside the United States or whether they will have to wait outside the United States for many years before obtaining a greencard.
What if I entered the United States with a visa, but overstayed and now I have a United States citizen spouse who wants to apply for me?
According to the Department of Homeland Security’s 2018 Report, there were 666,582 overstays in the year 2018. An overstay is a person that was granted authorization to enter and stay in the United States for a temporary period of time and then did not leave the United States within that authorized period. This can be overstaying on the visa waiver program, a visitor visa, student visa, or any other temporary visa. A person who overstays their visa is deportable. However, that doesn’t necessarily mean that person will be deported. The government forgives the overstay in many situations and will allow the person to obtain a greencard within the United States if they are otherwise eligible. For example, under the current policies, USCIS (United States Citizenship and Immigration Services) will, within their discretion, allow a person who has overstayed their visa to obtain a greencard based on marriage to a United States citizen. This forgiveness usually only extends to family based applications and not employment based. There are also many considerations that can affect eligibility, so it is important for any person with any immigration violation, like an overstay status, to consult with an immigration attorney before filing any immigration paperwork. USCIS can issue a Notice to Appear and place a person in removal (deportation) proceedings, so consult with an immigration attorney to understand the risks.
What if I entered the United States without authorization, but now have a United States citizen spouse who wants to apply for me?
A person who has entered the United States without authorization has not been “admitted or paroled” into the United States. In most circumstances with limited exceptions, a person cannot obtain a greencard inside the United States if they have not been “admitted or paroled.” This is problematic for many people because there are penalties for people who have accrued unlawful presence inside the United States and then leave. For example, a person who has accrued one year or more of unlawful presence and then leaves the United States triggers a ten year bar to coming back to the United States. A person who has accrued more than 180 days but less than one years of unlawful presence and then leaves the United States triggers a three year bar to coming back to the United States. That person would have to prove that their United States citizen spouse, parent or child (under 21) would incur extreme hardship in order to get a waiver for this ten or three year bar.
The government has made the process a little easier and less risky for people who entered the United States without authorization. They have allowed the filing of a provisional waiver while the person is still inside the United States. So, if you entered the United States without authorization, married a U.S. citizen (or have another qualifying immediate relative who is a U.S. citizen), you can file for the waiver and wait for a decision on the waiver while you are still inside the United States. Then, if it is approved, the person can leave the United States to have their interview at the embassy in their home country and if otherwise admissible and the application is approved, can reenter the United States with an immigrant visa and obtain their greencard. This is a very complex process with many potential pitfalls, so it is absolutely critical to consult with an experienced immigration attorney before filing anything with the government or before leaving the United States. For example, even if the provisional waiver is approved, a person can be denied admission to the United States based on other grounds (i.e. prior fraud, criminal convictions, affidavit of support issues, etc.)
What if I entered the United States without authorization, left and then came back without authorization?
There are serious consequences for individuals who were unlawfully present in the United States for an aggregate period of more than one year and enters or attempts to reenter the United States without being admitted or for any person who was ordered removed and enters or attempts to reenter the United States without being admitted. There is a permanent bar that applies to this situation. A person can only get a waiver after spending ten years outside the United States and if they can prove extreme hardship to a qualifying immediate relative. So, if someone overstayed their visa or entered without authorization and they were on U.S. soil unlawfully for one year or more (even if it was during different visits) and that person left and then reentered or attempted to reenter without authorization, the permanent bar applies and the person would not be able to obtain a greencard. If this situation applies to you, contact an immigration lawyer right away to discuss your options.
What are some other consequences to being in the United States without authorization?
There can be many consequences to violating a person’s status including, but not limited to, denial of future applications to enter the U.S., exclusion from the Visa Waiver program, criminal prosecution, and more. However, there may also be options available to people who are in this situation. Many laws, regulations, and policies apply to various situations and it is important to talk to someone who has experience in these areas to formulate a strategy and to provide the different options and risks involved in a particular case.
Jeremy Lasnetski is a partner at the Law Offices of Shorstein, Lasnetski, & Gihon. The firm focuses on immigration, criminal defense and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense and is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter. He has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more. He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.