Currently, the law of land states that a person who has been deported/removed (including at the border) and later enters without inspection/permission is inadmissible to the United States until that person has resided in the exterior for a period of not less than ten years and after such period, may apply for permission to re enter the United States. Consequently, unless such person has a valid claim to asylum or been the victim of a serious crime, this person will not be able to obtain their residency without departing the U.S. for a considerable length of time. In those rare cases, your best bet is to speak to an experienced immigration lawyer to discuss your possible options.

 

It is very difficult for someone who entered “without inspection” to legalize their status here because normally an “adjustment of status” to that of a Lawful Permanent Resident requires proof of a lawful entry or in the alternative, the undocumented person be the beneficiary of an immigrant visa petition filed before April 30, 2001. As such, you may consider a claim to “asylum” if you have a legitimate fear of being persecuted in your home country on certain grounds. In that case, you would file an I-589 asylum application and wait for an interview. If you are successful in your interview you would be granted status as an asylee, and are eligible to apply for your permanent residency a year later. If you are unsuccessful at the interview, you will be placed in removal proceedings before the Immigration Court, where you will have a chance to renew your asylum claim. Ultimately, if you do not win your asylum case on this level or in the subsequent appeals process you will be ordered “removed” or granted voluntary departure to leave the United States depending on your particular circumstances. As you can the see the asylum process is very complex, and most cases are denied, so it is crucial that you speak with an experienced immigration lawyer before filing any documents with the Citizenship & Immigration Service. Similarly, if you have been the victim of a crime, you may have the chance to legalize your status but those cases are extremely delicate and complicated and should be handled by a licensed attorney who specializes in immigration law.

Unfortunately, if none of the above applies to you, then, more than likely, there is not much you can do except hope and pray that the law changes to your favor.

Aside from possibility of applying for asylum through the procedures described above, if an “overstay” has entered into a bona fide marriage with a United States Citizen, they may be able to obtain their permanent residency without having to depart the United States. Typically, all other overstays seeking to legalize their status (many through employment) must return to the U.S. consulate in their home country to receive their visas. This departure, however, may trigger the 3 & 10 year bars which state that an individual illegally in the US for 6 or more months who departs, cannot re-enter the US for a period of not less than 3 years. Similarly, an individual illegally in the US for over a year who departs, cannot re-enter the US for a period not less than 10 years. As you can see, this is a complicated matter not to be handled by the inexperienced!

The short answer is yes. I would need to analyze your case specifically to assess your level of danger but I can tell you that for more than ten years, the U.S. government has become increasingly intolerant of foreigners committing crimes on U.S. soil. If you are a non-citizen who has been accused but not yet convicted of a crime, I strongly urge you to speak as soon as possible with a competent immigration attorney about your situation. Pleading guilty (to avoid jail time) to what may be seen as a “lesser” charge could result in your deportation!