From Illegal to Permanent Resident

Posted on 2月 26, 2006 by Warren Wen | Category: Immigration

From Illegal Status to Lawful Permanent Resident

Mr. Wang asked:

I entered into the United States with a B-1/B-2 visa in April, 2000, which allowed me to stay in the U.S. for 6 months.  After 6 months I was still in the U.S, and became an illegal immigrant. Since then, I have been working as a cook at a restaurant. My boss hasn’t applied any labor certificates for me yet.  Now, I have a girlfriend, who has a green card.  My question is, then, which would be the best way for me to get a green card.

Answer:

Many foreigners legally enter the U.S., but later become illegal because of various reasons. Those who do not have a legal status may apply for a legal permanent status through the following four ways under the circumstance which is acceptable by the law: 1) to apply for an Asylum, 2) to apply to withhold the removal, 3) to marry an American or a lawful permanent resident, or 4) to apply for a labor certificate under Section 245(i).

The first one, to apply for an asylum, is only available for a person who is already in the U.S. and is unwilling or unable to return to his/her home country because he or she expects to encounter persecution based on race, religion, nationality, membership in a particular social group or political opinion. If the person has the desire to get a permanent status through this, he or she would need to prove that he or she has been persecuted and or his or her life has been threatened in his or her home country. However, it is not applicable, if in the following 3 cases:

  1. Person who is allowed to live safely in a third country;
  2. Person who did not submit an asylum application within one year of his or her arrival in the U.S; or
  3. Person who has been denied of his or her previous application for the asylum, or has been convicted by the final judgment of a particularly serious crime and constitutes a danger to the community of the United States.

The second one, to apply to withhold the removal is available to the followings:

  1. Person who has been continuously residing in the U.S. for 10 years and more;
  2. Person has maintained good characters during those 10 years of his or her stay in the U.S.; and
  3. Person who has not committed any crimes that could have convicted him or her by the immigration’s laws (including any crimes involving moral turpitudes, against the law of drugs, and some capital felonies).

At the same time, he or she would need to prove his or her spouse, parents or children who are already U.S. citizens or the permanent residents would be greatly suffered according to the immigration’s law if he or she was removed.  One thing he or she would need to be careful is how to count the 10 years of his or her U.S residency mentioned earlier. Once the person is involved in an immigration court procedure, his or her time of stay may not be included in those 10 years.

The third one is to marry a U.S. citizen or a lawful permanent resident. The U.S. government has not placed any quota systems to limit the number of applicants for the green card by marriage to a U.S. citizen.  As long as he or she entered the U.S. with a legal status and the spouse who is a U.S. citizen has enough financial resources to support him or her living in the U.S., he or she could apply for the green card regardless of his or her current legal status.  Also, the person who married a lawful permanent U.S. resident could apply for a permanent resident status in the U.S. There would be only one limitation – he or she would need to wait for the quota, and the waiting time may be long.

The last one is especially favorable to the illegal immigrants with special skills. A U.S. employer could apply for the labor certificate for a foreigner who wishes to adjust his/her status under two circumstances: if the employer wants and is capable to do so; and an application for the approvable labor certificate or a petition for the family-based immigration visa has been submitted on behalf of the illegal employee before April 31, 2001.  Then, he or she could apply for a lawful permanent resident status.  Whether he or she has lost the legal status in the U.S or not would not affect the foreigners in applying for the labor certificate.

Since Mr. Wang has overstayed in the U.S. for more than one year, it would be very difficult for him to apply for an Asylum, unless he had some special circumstances which he could prove.  He may still be able to apply for the green card after he married his girl-friend who is a lawful permanent resident.  However, the petition alone may not allow him to adjust his status and he may have to wait a long period of time until he could actually apply for the green card application when the quota is available.  The best way for him to apply for the green card, thus, would be to wait until his girl-friend became a U.S. citizen and applied for the green card as the spouse of a U.S. citizen, since there is no quota for those applicants who wish to apply for green card by marriage to a U.S. citizen.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.