Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss a little-known law called LIFE Act 245(i) which allows certain undocumented immigrants to apply for permanent residence.
Want to learn more? Keep on watching.
What is 245(i)?
Section 245(i) is a provision of the Legal Immigration Family Equity Act (LIFE) which allows certain persons, who entered the United States without inspection (unlawfully), or otherwise violated their status, to apply for adjustment of status in the United States, if they pay a $1,000 penalty.
To be eligible, the applicant must have an immigrant visa immediately available. Immigrant visas are immediately available for spouses of U.S. Citizens, unmarried children under 21 years of age of a U.S. Citizen, and parents of U.S. Citizens (if the U.S. Citizen is 21 years of age or older).
Welcome back to Immigration Lawyer Blog, where we discuss all things immigration. In this video, we cover a very important topic: can people who overstayed their visa or entered illegally, get a work visa or employee sponsorship?
Recently our office met with a client who was in this very predicament. He had the perfect job opportunity from his dream employer and was now interested in knowing how he could obtain a work visa with his employer’s sponsorship. The problem: he entered the country illegally and since entering had no lawful status in the United States.
Here is where we had to deliver the bad news.
The bottom line
A person who has entered illegally or overstayed the duration of their visa, is not eligible to adjust their status to permanent residence. During the employment sponsorship process, the visa applicant must provide information regarding their entry to the United States. Under current immigration law, a person who has entered without inspection cannot adjust their status in the United States, based on employment sponsorship except under one limited exception called 245(i).
What is 245(i)
245(i) is a provision in the law passed under the Legal Immigration Family Equity (LIFE) Act in the year 2000, enabling certain individuals who are unlawfully present in the United States to apply for adjustment of status, despite their unlawful entry.
The Trump administration recently announced new rules for expedited removal, the process of apprehending undocumented immigrants and removing them from the United States, without the opportunity to see a judge or attend an immigration hearing.
What is Expedited Removal?
Expedited removal refers to the fast track process of deporting an undocumented immigrant from the United States without an immigration hearing. This fast track removal process has been in effect since July 23, 2019.
Prior to this date, individuals apprehended within 100-miles of a U.S. border, present in the United States for less than 14 days, were not entitled to an immigration hearing prior to removal from the United States.
Under the new rules, a person who is unlawfully present anywhere in the U.S., for a period of less than 2 years, can be placed under expedited removal. If you have been unlawfully present in the U.S. for more than 2 years, then you must provide documentary evidence of your physical presence during that time to avoid expedited removal.
Expedited removal is part of a larger effort to deter illegal immigration and prevent American employers from hiring undocumented immigrants.
For more information about expedited removal please click here.
Don’t forget to download our free e-book, the Five Ways to Get a Green Card in the United Stateshere.
In this video attorney Jacob Sapochnick discusses recent immigration raids in the state of Mississippi that led to the arrests of 680 undocumented immigrants at several worksite locations across the state.
ICE was able to obtain search warrants prior to the raids, which enabled them to conduct these raids and arrest undocumented workers.
These raids occurred ahead of stricter compliance standards announced by USCIS penalizing employers hiring undocumented workers. These raids come as a sign that USCIS will be getting tougher on employers, and on employees working unlawfully in the United States.
What will happen to the employees that were arrested?
These individuals will be questioned to determine whether they are undocumented and whether they are working in the United States illegally. If an individual is determined to be in the United States illegally then that individual will go through the normal process of being removed from the United States.
What’s the difference between someone who is undocumented in the United States and someone who is here illegally?
What does it mean to be “undocumented”?
When someone is in the United States “undocumented,” that means that the person entered the United States without inspection (without the proper documentation), and as a result are currently living in the United States without the proper documentation, hence the term “undocumented.”
What does it mean to be in the U.S. “illegally”?
On the other hand, someone who came to the United States on a valid visa (such as a student visa, tourist visa, etc.) and then lost their status, either because they did not renew their visa, or their visa expired, or for some other reason, are in the United States “illegally.” These individuals were legally in the United States at some point but are now in the United States “illegally” because they are now out of status. This is also referred to as a visa overstay. That is because the individual has now stayed in the United States past the time authorized by their initial visa.
In both cases, the individual is in the United States without authorization because they do not have the proper visa.
Path to Residency
A person who is “undocumented” meaning that they entered the United States without proper inspection, cannot adjust their status to permanent residency so easily even where married to a U.S. Citizen. Undocumented parties married to U.S. Citizens must file a waiver of inadmissibility and in some cases will have to leave the United States before applying for residency.
By contrast, a person who entered the United States with proper inspection, but who is now in the United States illegally because of an overstay, can apply for permanent residency more easily, where married to a U.S. Citizen. These individuals do not have to leave the United States before applying for residency.
The key difference between the two is in whether the person entered the country with inspection. If you entered without inspection, you would be undocumented. If you entered with inspection, but have overstayed your visa, you are in the country illegally.
If you have questions about relating to your status and legalization, please contact us.
The San Diego Immigration Law Offices of Jacob J. Sapochnick welcomes you. Our immigration practice is committed exclusively to the areas of immigration and citizenship law. We have big firm expertise in these specialties, but strive to deliver personalized client services at an economical cost.
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Recently the President of the United States controversially announced that he could end birthright citizenship by executive order.
What is birthright citizenship? The 14th amendment of the U.S. Constitution grants citizenship to all persons born in the United States. This right to citizenship is referred to as “birthright citizenship.” Such a right is granted to an individual born in the United States, irrespective of their parent’s immigration status in the United States.
Unsurprisingly, the President made the suggestion that he could do away with birthright citizenship, ahead of the midterm elections in the United States. The timing of the President’s statement shows that the message was politically motivated.
Does the President have the power to end birthright citizenship? The President cannot end birthright citizenship by executive order. The President’s message was made simply to incite fear in the non-citizen population, and to solidify the President’s support from his conservative base, who believe that “anchor babies,” a derogatory term used to refer to children born in the United States to non-citizen parents, should not be entitled to United States citizenship.
The President is likely aware that he, of course, does not have the power to end birthright citizenship by executive order, and made such a statement to deliberately deceive his base, and create confusion.
This is very troubling, given the state of our current political climate. If the President ever signed such an executive order, it would undoubtedly be met with fierce opposition in court.
In this video, we touch on a very common question: what are the possibilities of changing your status after a visa overstay?
If a person comes to the United States on a visa, whether it is a tourist visa or a student visa, there is a duration of stay that is attached to the visa. To determine the amount of time you are allowed to remain in the United States you must obtain your I-94 arrival/departure record from the CBP website.
If you entered the United States on a tourist visa you can typically stay for up to six months, and you can extend your stay for another six months. During your initial authorized stay, you may change your status to another category such as a student or investor visa. Once you have overstayed and essentially lost your legal status, it is very difficult to change to another legal status.
In this post, attorney Jacob Sapochnick talks all about the state of DACA (Deferred Action for Childhood Arrivals) and what you should know as a recipient of DACA.
In September of 2017 the Trump administration announced that it would be ending the DACA program, which allows undocumented immigrants who came to the U.S. as children to live and work in the United States without fear of deportation.
Attorney General Jeff Sessions spoke on behalf of the administration and said that USCIS would not accept new requests for DACA but would allow DACA recipients with work permits expiring between September 2017 and March 5, 2018 to apply for a final 2-year renewal of their status including employment authorization.
This announcement put considerable pressure on Congress to pass legislation before March 5, 2018 to protect Dreamers from deportation.
The I-601 waiver is an application that is filed by individuals who are ineligible to gain admission to the United States as an immigrant, or who cannot adjust their status in the United States to become a permanent resident, because they are barred from the United States. The I-601 waiver is essentially a form that is filed to gain permission to apply for permanent residence in the United States or gain admission through an immigrant visa. This form will allow individuals to obtain relief from the following grounds:
Health-related grounds of inadmissibility (INA section 212(a)(1))
Certain criminal grounds of inadmissibility (INA section 212(a)(2))
Immigration fraud and misrepresentation (INA section 212(a)(6)(c))
Immigrant membership in totalitarian party (INA section 212(a)(3))
Alien smuggler (INA section 212(a)(6)(E))
Being subject to civil penalty (INA section 212(a)(6)(F))
The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B))
Who is Eligible?
Not everyone is eligible. To qualify, you must have what is called a “qualifying” relative who will be the focus of the petition. A qualifying relative includes a U.S. Citizen or legal permanent resident spouse or parent. In cases where a waiver is filed for certain criminal grounds of inadmissibility a qualifying relative may also include a child who is a U.S. citizen.