There are more than 11 million immigrants in the United States who do not have lawful immigration status, or are considered undocumented.
According to immigration experts, many undocumented immigrants may not qualify for lawful status, and even for those who do, obtaining lawful status is very complex and eligibility depends on each individual’s circumstances. For this reason, it is best to consult with a qualified legal professional.
This article, along with the quotes mentioned, are solely for informational purposes only and does not constitute legal advice. For legal assistance please see our list of Pro-bono Lawyers in New York.
This article was last updated December 10, 2024.
Who is an undocumented immigrant?
While the term undocumented is often associated with those who entered the U.S. without permission or inspection, many undocumented people may actually have entered the country lawfully with a tourist visa or a student visa, for example, and remained in the country after their period of authorized stay expired. This is known as overstaying a visa.
How might an undocumented immigrant qualify for temporary or permanent lawful status?
There are multiple paths one may be able to take to obtain a legal status, either temporary or permanent, which will differ depending on each individual’s circumstances. The best way to determine if you qualify for lawful status in the U.S. is to speak with a licensed immigration attorney or Department of Justice (DOJ)-accredited legal representative.
Individuals who fear returning to their home country because they were persecuted or feared persecution on the basis of their race, religion, nationality, political opinion or membership in a particular social group, may be able to apply for asylum in the US. Asylum provides a pathway to lawful permanent residence. There are strict rules about who qualifies for asylum and how and when they may apply, so it is critical to speak to a qualified immigration legal service provider such as a licensed immigration attorney or DOJ-accredited representative as soon as possible if you wish to seek asylum.
Some undocumented individuals may be able to apply for US residence based on a qualified family relationship to a U.S. citizen or Lawful Permanent Resident (LPR).. “When we have undocumented people visit us or ask us questions, we listen to their story and try to make some connections to either existing family that might be here. So we try to seek avenues of green cards through family connections…” Shawn Rahman, Esq. Managing Attorney, Training and Capacity Building at CUNY Citizenship Now!, said. He added that an individual could qualify for permanent or temporary lawful status in the country in other ways.
For example, victims of domestic violence, or certain crimes, victims of human trafficking, or minors who have been abused, abandoned or neglected may qualify for humanitarian relief that provides a pathway to permanent status. In addition, individuals from certain countries experiencing disruption due to war or natural disasters may also qualify for Temporary Protected Status, or TPS. Unlike asylum or other humanitarian forms of relief, TPS does not provide a pathway to permanent status.
Will I be allowed to work if I qualify for legal status?
Some non-citizens, such as lawful permanent residents (greencard holders), those granted asylum, those granted T status as victims of human trafficking and those granted U status as victims of crime, are automatically allowed to work upon receiving their status. Others, such as those with Temporary Protected Status, must separately apply for permission to work after they receive their status. Still others may be able to apply for permission to work while their applications for legal status are pending.
Does it make a difference how one entered the country?
How one entered the U.S. can affect the process of obtaining residency. Those who were admitted or paroled to the U.S. may be able to apply for an adjustment of status while in the country, however they may need to qualify for a waiver of inadmissibility if they were unlawfully present or worked without permission in the US for any period of time. Someone who does not have a record of being admitted or paroled will most likely have to leave the country and apply for a visa through a U.S. consulate abroad. There are exceptions so it is important to speak to a lawyer.
Can individuals leaving the country be detained or sent to jail for unlawful entry?
All persons leaving the country will have to pass through security checkpoints, where a Transportation Security Officer (TSA) will check their passport. Those who do not have a visa or stamp in their passport showing that they were inspected and admitted or paroled upon entry and have maintained lawful presence in the US , could be taken into custody for inspection by a Customs and Border Protection (CBP) officer who will determine whether they will be detained or placed into removal proceedings.
“When you are at a border you always have diminished rights. It is rare to have some detained when they seek exit. If you have a criminal warrant you may be arrested. If you overstayed, you are not likely to be detained but your departure will be electronically noted in various ways. While the United States does not have a formal ‘exit visa’ requirement, the government does collect data from airline manifests and entry swipes of passports in the next country,” Lenni B. Benson, Distinguished Chaired Professor of Immigration and Human Rights Law at New York Law School, said. Those who have previously violated the immigration laws could be denied a visa or refused entry to the U.S. in the future.
If you are traveling out of the country and are detained at the airport, but have a pending application for adjustment of status, Rahman recommends having your “attorney present it to Immigration and Customs Enforcement (ICE) as soon as possible.”
How long will I wait for a green card?
The length of time an individual may have to wait before they can apply for permanent residence can also vary according to their eligibility basis. For marriage-based green cards, for example, Benson said that the process can depend on two components. “First, is your immigration category subject to a quota limit? Some categories of immigration have no delay, like a marriage to a U.S. citizen. But marriage to a lawful permanent resident or derivative immigration status because your spouse is immigrating through a family or employment sponsor means you can be subjected to quota delays.”
Also Read: Pro-Bono Lawyers And Free Legal Immigration Services in New York
What is the possible impact of any amount of time spent in the U.S. without permission on a person’s eligibility for permanent status or ability to enter the US in the future?
Under the Immigration and Nationality Act, individuals who are residing in the US without permission for any period of time are inadmissible, meaning that they are not eligible for lawful permanent residence, unless they qualify for a waiver. If they depart the US after having accrued 180 days or more of unlawful presence, they will be barred from re-entering the US for 3 years; if they have accrued a year or more of unlawful presence, they will be barred for 10 years. Others, including those who re-entered the US after having been ordered removed, may be subject to a permanent bar to re-entry.
There are many reasons why a person would not be able to leave the country—as seen during the beginning of the Coronavirus pandemic when the airports closed. However, individuals in the US on temporary visas should request extension of their status from USCIS so that future travel won’t be in jeopardy.
Will you be detained when you try to leave the country if you overstayed?
“If you overstayed, you are not likely to be detained but your departure will be electronically noted in a variety of ways…. If your overstay was brief, excusable, explainable, etc., you may find that you can still apply for and obtain a visa stamp to return as a visitor or other temporary category.…There is also a permanent bar in the statue,” Benson said.
What is a permanent bar?
A permanent ban, Rahman explained, occurs when an inadmissible person (for example, being barred for ten years) enters the country without inspection again. “There’s a form called I-212 [Application for Permission to Reapply for Admission into the United States After Deportation or Removal] that is sort of like a permission to reapply after removal,” Rhaman said.
What are the waivers for the three and ten-year bars?
Waivers for the three and ten-year bars are found in two provisions, Benson said:
Waiver for a return as a nonimmigrant: See INA § 212(d)(3). This waiver is only for a temporary return. It is one of the most generous waivers in the entire law but the process must be carefully followed and it can take some time. You will have to show why your return is only for a bona fide temporary purpose.
Waiver as an immigrant: See INA §212(a)(9)(B)(v). This section allows for a waiver of the bars if your spouse or parent is a lawful permanent resident (green card holder) or U.S. citizen. Having U.S. citizen children is a factor but not sufficient. See the criteria and procedures.
Also read: Advance Parole: How DACA Recipients Can Travel and Re-Enter the Country
Can an undocumented immigrant apply for an employment type of Visa while in the United States?
Benson said there is no single or simple answer, adding, “Some people qualify to seek a nonimmigrant visa with work authorization, e.g., a person who is a national of a country where we have a treaty of investment and/or trade. Some people may qualify based on a special grant of Temporary Protected Status or TPS. Everyone has a unique situation and should seek individualized legal consultation.”
There are certain categories of employment visas that require individuals to have a sponsor apply first before they enter the United States. They are temporary categories that can be extended by an employer, too. For individuals who are already in the country they can also apply for certain employment visas that fit their eligibility, talent, career, etc. Sometimes it also depends on the interests of the country.
“I would sort of ask where do you work, who do you work for, or do they want to sponsor you? If we determine somebody has a special skill, then we might recommend to them to look into one of the preference categories for immigrant workers,” Rahman said.
What if I don’t have a sponsor for an employment-related visa?
Certain individuals can still be allowed to work in the U.S. if they do not have a sponsor but qualify for an Employment Authorization Document (EAD) under certain categories, like Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS). These categories permit eligible individuals to apply for a work authorization while their status is active.
“Generally, the regulations on who qualifies for work authorization are found in 8 C.F.R. § 245A.12. There are categories of people who can seek a work permit because of special circumstances, e.g., Afghans granted parole admission, Ukrainians granted parole permission, people granted “deferred action,” people seeking asylum and the application has been pending the required length of time, etc. There is no catch-all work permit,” Benson said.
Are undocumented immigrants eligible for U Visa even if they do not have a record of entering the country?
Passed along with the Victims of Violence and Trafficking Act in 2000, the nonimmigrant U visa is designated to immigrants who have been victims of mental and/or physical abuse and have collaborated with law enforcement. Some of the crimes include rape, kidnapping, extortion, incest, etc.
For individuals who do not have a lawful status or admissibility record who qualify for the U status route, they must file a waiver. “The criteria for a U Visa is to not have run a foul on the grounds of inadmissibility, and to be admissible, you have had a lawful admission. Form I-192 helps you overcome the inadmissibility issues.”, Rahman said.
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