Adjusting Status as an Undocumented Immigrant in the U.S.

Navigating the U.S. Immigration System as an Undocumented Immigrant
If you are an undocumented immigrant in the United States who has faced arrest or is currently in deportation proceedings, the prospect of applying for a green card through a family member may seem daunting or even impossible. You might be thinking, “If I were eligible, wouldn’t I have applied already?” However, it may surprise you to learn that some undocumented immigrants can indeed adjust their status through a U.S. citizen or lawful permanent resident (LPR) family member, even while in removal proceedings. This eligibility can arise from various factors, such as a recent marriage or the availability of a priority date that aligns with your situation.

Understanding Adjustment of Status

Adjustment of status refers to the process of applying for lawful permanent resident (LPR) status while remaining physically present in the U.S. This process is distinct from consular processing, which requires applicants to be outside the country. It is essential to note that not every immigrant qualifies for adjustment of status. To be eligible, you must have entered the U.S. lawfully, meaning you were inspected and admitted at a designated port of entry. Additionally, you must be admissible, have an immediately available visa number, and possess an approved visa petition filed on your behalf by a qualifying relative, such as a U.S. citizen or LPR.

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Meeting the Eligibility Criteria

To successfully adjust your status, you must meet several critical requirements:

1. Lawful Entry: You must have been inspected and admitted at a U.S. port of entry, unless you qualify for special provisions like Section 245(i).
2. Admissibility: You must not be barred from entry due to specific immigration violations or criminal convictions.
3. Qualifying Relative: A U.S. citizen or LPR must file a visa petition on your behalf.
4. Immediate Visa Number: Your priority date must be current, allowing you to proceed with your application.
5. No Major Violations: You should not have significant immigration violations on your record, although exceptions exist, particularly for unauthorized employment if you are married to a U.S. citizen.

Section 245(i): A Glimmer of Hope

Section 245(i) offers a crucial opportunity for certain undocumented immigrants who may not have entered the country lawfully or who have violated their immigration status. If you are a beneficiary of a visa petition or labor certification that was filed on or before April 30, 2001, you may still be eligible to adjust your status. The petition must either be approved or deemed “approvable when filed.” If your petition was submitted between January 14, 1998, and April 30, 2001, you must also provide evidence of your physical presence in the U.S. on December 21, 2000. Meeting these criteria can open a rare pathway for undocumented immigrants to adjust their status despite previous violations.

The Immigration Court Process

When seeking adjustment of status before an immigration judge, the process differs significantly from the standard USCIS procedure. In these cases, USCIS handles the I-130 Petition for Alien Relative, while the immigration judge reviews the I-485 Application to Adjust Status.

Special rules apply in court. If your adjustment is based on marriage, the burden of proof is elevated—you must provide clear and convincing evidence that your marriage is genuine, particularly if it occurred during deportation proceedings. This entails submitting robust documentation and being prepared for cross-examination to validate the authenticity of your marriage.

In Conclusion
Navigating the complexities of U.S. immigration law as an undocumented immigrant can be overwhelming, yet it is not insurmountable. While eligibility for adjustment of status may seem elusive, various provisions and exceptions can significantly improve your chances. Understanding the intricacies of laws like Section 245(i) and the differences between USCIS and immigration court procedures highlights the importance of obtaining reliable legal counsel. With the right information and support, the possibility of adjusting your status and securing a more stable future is within reach.

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Q: What are the specific conditions under which Section 245(i) can be applied for adjusting status as an undocumented immigrant?

A: Section 245(i) can be applied if you are a beneficiary of a visa petition or labor certification filed on or before April 30, 2001. The petition must be approved or “approvable when filed.” Additionally, if your petition was submitted between January 14, 1998, and April 30, 2001, you must demonstrate physical presence in the U.S. on December 21, 2000. Meeting these conditions allows certain undocumented immigrants to adjust their status despite prior violations.