Can I get my residency in the United States if I entered illegally?
The general rule is, no. In the immigration aspect, entering the United States through an area not designated as a port of entry and without being “inspected and admitted” by an immigration officer can have dire consequences. A person who entered without inspection cannot obtain legal permanent resident status in the United States.
However, like every rule, there are exceptions to this one. You MAY still be able to obtain permanent resident status, even if you have an undocumented entry into the United States, if one of the following applies to you:
- If there was a petition filed on your behalf before April 30, 2001;
- If you have an immediate family member (parent, son or daughter, or spouse) that served in the U.S. Armed Forces;
- If you are obtaining adjustment of status under the Violence Against Women Act as a victim of domestic abuse;
- If you are obtaining adjustment of status because you obtained a U Visa as a victim of a qualifying activity;
- If you are a victim of human smuggling.
However, if none of the above apply to you, you may be ineligible to obtain permanent resident status in the United States and may have to obtain your residency through American Consulate at your country of origin and request a provisional waiver (for more information, see our provisional waiver FAQs section). If you entered illegally to the United States and are considering filing an application for an immigration benefit, you should consult an immigration attorney before you take any action on your case.”
What is the I-601A Provisional Waiver and how can it help me?
The I-601A Provisional Waiver (the “provisional waiver”) is a waiver for the unlawful presence inadmissibility ground. Persons who are found to be inadmissible cannot obtain an immigration benefit, unless there is a waiver for the inadmissibility ground. Those that have been unlawfully present in the United States for more than 6 months become inadmissible to the United States for a period of 3 years. Persons who have been unlawfully present in the United States for more than a year become inadmissible to the United States for a period of 10 years. However, the 3 and 10 year bars can be waived with the I-601A Provisional Waiver.
Generally, the requirements to obtain the provisional waiver are the following:
1. One must be entitled to receive a residence and their priority date must be current.
2. One must be admissible to the United States. This means that someone cannot have committed a crime that makes the person inadmissible or violations of immigration laws. The only inadmissibility bar that the provisional waiver pardons is for having unlawful presence in the United States.
3. This waiver is only to waive the unlawful presence bars to admissibility to the United States. Unlawful presence occurs when you enter the United States in an undocumented or documented manner and remain in the United States without legal authorization for more than 6 months. Those who have other crimes or illegal re-entry after being deported or after having lived in the United States for more than one year, are not eligible for a grant of the provisional waiver. For the purpose of this waiver, a voluntary departure is not considered a deportation.
4. The applicant must live in the United States and be over the age of 17.
5. The provisional waiver can only be requested if your parents or spouse are United States residents or citizens. Unfortunately, a resident or citizen child does not qualify as a family member that can request this waiver. To be granted the waiver, one has to demonstrate that the United States citizen or resident family member is going to suffer an extreme hardship due to the denial of the immigration benefit that is being requested.
Also, note that while the provisional waiver is sought and approved (or denied) while you remain within the United States, the person must leave the country after being pardoned to appear at the American Consulate abroad to obtain her/his legal residency. However, since the waiver has been approved, the person will likely obtain residence status without a problem. Usually, our clients stay 5 to 8 days abroad and return as residents.
As you can see, this is a complicated process and should not be tried without a good immigration lawyer. For more information, we invite you to call 956-278-0888 and schedule your free appointment. We have offices in Brownsville and McAllen, Texas. Thank you.