Pathways to Legal Status and Green Cards for Undocumented Immigrants

The term "illegal immigrants," or "undocumented immigrants," refers to people who do not have lawful immigration status in the United States, and includes two major categories:

• One category consists of those who entered the United States without inspection or permission, such as those who crossed the border illegally or came through irregular routes, including "Dreamers" who were brought to the U.S. illegally by their parents as children and are temporarily protected under the DACA program;

• The other category consists of those who entered lawfully with a valid visa but remained in the United States beyond the period of stay authorized by the U.S. government, thus overstaying unlawfully.

There are very few pathways for undocumented immigrants to obtain lawful immigration status and permanent residence (a green card)—especially for applicants who entered by crossing the border illegally or through irregular routes.

Marriage-Based Green Card

Marriage to a U.S. citizen is one of the most common pathways for undocumented immigrants to obtain legal status. Under immigration law, the foreign spouse of a U.S. citizen is an "immediate relative"; immediate relatives also include the parents and minor children of U.S. citizens. The green card process for immediate relatives is relatively simple and can even be handled without a lawyer—provided that you entered lawfully.

1. Applicants Who Entered Lawfully After Inspection

There are two common ways to obtain a U.S. green card: consular processing and adjustment of status:

• If the applicant is outside the United States, they apply for an immigrant visa through a consulate and receive the green card after entering the U.S.

• If the applicant is inside the United States, they file Form I-485 with USCIS to "adjust" their nonimmigrant status to immigrant status.

Adjustment of status requires that you have a lawful nonimmigrant status. If you entered lawfully with a valid visa but later lost status due to overstaying, generally you will not be able to adjust status—but there are exceptions to this rule, including for immediate relatives of U.S. citizens (such as spouses).

If you marry a U.S. citizen, as long as you entered lawfully, you may still apply for adjustment of status and obtain a green card as an immediate relative of a citizen, even if you later overstayed and lost lawful status. Note that this exception requires your spouse to be a U.S. citizen; a green card holder does not qualify.

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2. Applicants Who Did Not Enter Lawfully After Inspection

If the applicant entered without inspection (e.g., crossed the border illegally) and was not lawfully admitted through customs; or if the applicant's spouse is not a U.S. citizen but a permanent resident (green card holder), then the above pathway does not apply.

Under U.S. law, if a foreign spouse and children entered the United States without inspection and remained for a long time, they cannot adjust status within the United States; instead, they must leave the United States first and apply for an immigrant visa through a U.S. consulate abroad. If the applicant previously stayed unlawfully in the United States for more than 180 days but less than 1 year, a 3-year ban applies; if the unlawful stay exceeded 1 year, a 10-year ban applies.

The applicant may be eligible to file Form I-601A to waive the above 3-year or 10-year ban, provided they can prove that, without the waiver, their U.S. citizen or green card spouse (or parent) would suffer "extreme hardship."

Please note that mere "separation from loved ones and unbearable longing" is not considered extreme hardship by USCIS. However, if your U.S. relative has a chronic illness and relies on your care, or if there are children to raise and childcare costs cannot be covered without you, such circumstances are more likely to be considered "extreme hardship."

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The I-601A waiver application is technically complex, and consulting a lawyer is generally recommended. In addition, the marriage between the applicant and the U.S. citizen must be genuine and valid; if either party was previously married, that marriage must have been legally terminated. Marriage fraud for the purpose of obtaining a green card carries severe penalties, including potential felony charges for the U.S. citizen involved in the fraud.

Asylum Status

Asylum status applies to people who have suffered persecution in the United States, or who have a reasonable fear of persecution if returned to their country of origin. It is important to understand that the persecution must be carried out by the government, or by groups that the government is unable or unwilling to control.

Under U.S. immigration law, persecution has a clear definition. Most critically, the persecution must be based on one of the following five factors: race, religion, nationality, membership in a particular social group, or political opinion.

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Generally, the requirements for obtaining asylum include:

• You are currently in the United States (regardless of whether you entered lawfully or unlawfully);

• You are unable or unwilling to return to your home country due to past persecution or a reasonable fear of future persecution upon return;

• The persecution is based on one of the following: race, religion, nationality, membership in a particular social group, or political opinion;

• You have not engaged in any activities that would make you ineligible to apply for asylum.

You must file Form I-589 to apply for asylum and withholding of removal, along with evidence supporting your claim. An initial interview is usually conducted to ensure that the applicant's case is reasonable. Those granted asylum (including their spouses and children) are eligible to apply for a green card after one year.

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U Visa for Crime Victims

In 2000, Congress passed the Trafficking Victims Protection Act, creating the U visa to protect noncitizens who have been victims of certain crimes and who assist law enforcement. The law aims to encourage victims to cooperate with police and prosecutors by reducing fears of deportation. The U visa provides legal status, employment authorization, and in some cases a path to permanent resident status (green card).

The four requirements for applying for a U visa include:

• The applicant is a victim of certain criminal activity and has suffered substantial physical or mental abuse as a result;

• The applicant possesses information about the criminal activity;

• The criminal activity violated U.S. law;

• The applicant has provided assistance (or is currently providing or will provide assistance) to the U.S. government in the investigation or prosecution of the crime.

Criminal activities covered by the U visa include but are not limited to:

• Abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage taking, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint, and other related crimes.

The victim must possess useful information related to the crime and be willing to cooperate with the police and officials investigating the case. Applying for a U visa requires obtaining a certification statement from law enforcement (Form I-918, Supplement B). In some jurisdictions, individuals other than law enforcement (such as judges or child protective services) may also provide certification statements.

In some cases, family members (spouse and children) may be protected under the same U visa. Accompanying family members may be eligible for derivative U visas under specific circumstances. The principal U visa applicant must file on behalf of eligible family members.

If you believe your situation may qualify for a U visa, consult an immigration lawyer. A lawyer can help you determine eligibility and properly contact law enforcement officials. There are also many nonprofit organizations that work with immigrant crime victims.

Obtaining a Green Card Through LIFE Act Protection

Some undocumented immigrants have the opportunity to pursue higher education and obtain high-skilled jobs. U.S. employers may be interested in sponsoring green cards for highly skilled potential employees. If these individuals originally entered illegally or overstayed their status, such as DACA Dreamers, they may be protected under section 245(i) of the LIFE Act (Legal Immigration and Family Equity Act), allowing them to complete the immigration process in the United States without having to return to their home country and apply for an immigrant visa through a consulate.

The LIFE Act is a law that allows undocumented immigrants to complete the green card process in the United States, provided that they or their parents filed an immigration application on or before April 30, 2001. For example, if Xiao Zhang's U.S. citizen uncle filed an I-130 petition for his father in early 2001, then Xiao Zhang may be protected under section 245(i) of the LIFE Act.

Immigration Amnesty

U.S. immigration law includes a category called "Green Card Through Registry," which allows certain people who have long resided unlawfully in the United States to "register" for lawful permanent resident status, commonly known as "immigration amnesty." Applicants must meet a series of conditions, including:

• Continuous residence in the United States since entry;

• Good moral character;

• Not falling under the grounds listed in INA sections 237(a)(4)(B) and 212(a)(3)(E), such as criminals, procurers, other immoral persons, subversives, narcotics law violators, smugglers, etc.

In addition, the most important requirement is that they must have come to the United States before a date specified by Congress, known as the "registry date." However, in the past 100 years, Congress has advanced the registry date only four times; the most recent was in 1986, during President Nixon's administration, when the registry date was advanced to January 1, 1972—in other words, only undocumented immigrants who entered before January 1, 1972 may be eligible for amnesty.

In 2023, California U.S. Senator Alex Padilla proposed immigration reform, including changes to the amnesty provisions: anyone who has continuously resided in the United States for more than 7 years and meets other conditions such as "good moral character" would be eligible to apply for a green card. If the undocumented immigration problem in the United States intensifies, perhaps Congress could enact another amnesty—after all, a bill already exists, and simply changing the registry date could potentially provide hundreds of thousands or even millions of applicants with "good moral character" the opportunity to become legal immigrants.

Applicants Facing Deportation

Undocumented immigrants who have lived in the United States for a long time and have been placed in deportation proceedings may still be eligible to apply for "Non-LPR Cancellation of Removal," thereby obtaining legal status and a green card. To be eligible for cancellation, you must meet all of the following requirements:

• You have continuously resided in the United States for at least 10 years;

• If you were deported from the United States, it would cause "exceptional and extremely unusual hardship" to your U.S. citizen or permanent resident spouse, child, or parent;

• You can demonstrate good moral character for the past 10 years; and

• You have not committed any of the offenses listed in INA §§ 212(a)(2), 237(a)(2), and 237(a)(3), such as crimes involving moral turpitude, any crime punishable by a sentence of one year or more, domestic violence, money laundering, document fraud, and a range of other offenses.

This option applies only to individuals facing deportation in immigration court, and the annual limit is 4,000. In other words, this pathway is extremely narrow.