When can an undocumented immigrant in the United States receive a green card through a family member? It can be a lot more difficult than you think!
Most undocumented immigrants who wish to receive legal permanent residence (a green card) through a family member in the U.S. fall into two broad categories: 1) those who legally entered the U.S. with a visa and 2) those who crossed into the U.S. without a visa. Those two groups are treated VERY DIFFERENTLY under American immigration law. If you are considering applying for a green card, you should consult with an experienced immigration attorney. Here is a very basic summary of those differences:
Group 1: People who legally entered the U.S. WITH a visa (and then stayed past the expiration of that visa)
In most cases, undocumented immigrants who legally entered the U.S. with a visa are able to file for legal permanent residence and receive their green card within a year if they have a SPOUSE, PARENT, or CHILD OVER 21 YEARS OLD who is a U.S. CITIZEN. They are able to have their green card interview at the nearest USCIS office to their home.
This process is called adjustment of status. They can also receive legal permission to work and travel in and out of the U.S. while their application is pending. If the family member is a NOT a citizen, but a green card holder, they typically must follow the rules of "Group 2".
Group 2: People who entered the U.S. WITHOUT a visa or cannot prove their legal entry to the U.S.
Millions of people currently in the U.S. illegally crossed the border without a visa. It is usually a longer process for these immigrants to receive legal residence and many are not eligible for a family-based green card application. First it is important to know that most immigrants in this category must have a SPOUSE or PARENT who is a U.S. citizen or lawful permanent resident. A U.S. citizen CHILD is NOT able to obtain a green card for their parent if the applicant does not have a spouse or parent with legal status. These applicants have a much longer process that often requires a waiver of inadmissibility, and these days the whole process often stretches longer than three years.
These applicants also cannot attend their immigration interview at the closest immigration office; they must return to their home country for their interview at the U.S. embassy or consulate there. This is known as consular processing. The majority of immigrants in this category are from Mexico and must attend their interview in Ciudad Juarez.
Two important exceptions to the rule: a child, parent or spouse who is an active member or veteran of the U.S. military can file a green card application for their relative who entered the country illegally, and that immediate relative can apply to be treated like they are in "Group 1".
Another important exception is the LIFE Act, also known as 245(i). Applicants who would otherwise be in Group 2, but had a petition filed on their behalf before April 30, 2001 and have been physically present in the U.S. since December 2000, may also be able to go through the “Group 1” process.
This is an EXTREMELY simplified version of the laws that govern family-based immigration applications for undocumented immigrants and you should not rely on this information to file a green card application. Many other factors can derail a case, including criminal convictions or multiple illegal entries. There are also other options for undocumented immigrants besides family-based applications, including asylum and visas for victims of crimes. EVERY immigrant, undocumented or not, should consult with an experienced immigration attorney about the details of their case before filing any immigration applications.
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