Illegal immigrants may file for permanent stay?

[Niels Bohr 72]

Do people who overstayed their tourist/visitor get the chance of becoming permanent residents? I don't understand. I heard stories of a large number of people getting permanent residency after they file for an adjustment of status.

I read the directions as it doesn't mention "Who may file?" headers. Can somebody confirm this? Or, who lied that they're just visiting, but instead got married and applied for an adjustment of status.

[Boiler 45,486]

They would need to have have a visa number available to them.

Lies would get you into big trouble.

[Brother Hesekiel 2,236]

A foreigner who is married to a US citizen can -- under most circumstances -- file for adjustment of status to become a lawful permanent resident. Whether this person is a student, housekeeper, Au Pair girl, Intracompany Transferee, or even a tourist does not matter.

Overstays are not an issue at AOS as long as certain criteria are met. Of course, immigration officials make sure that the marriage is legit and the US citizen and the foreigner have to go through the process of Removal of Conditions 2 years later, which eliminates most fraud cases. If fraud is to be found, the foreigner will be deported.

[Boiler 45,486]

May be deported.

Most are not.

[JimVaPhuong 4,863]

Do people who overstayed their tourist/visitor get the chance of becoming permanent residents? I don't understand. I heard stories of a large number of people getting permanent residency after they file for an adjustment of status.

I read the directions as it doesn't mention "Who may file?" headers. Can somebody confirm this? Or, who lied that they're just visiting, but instead got married and applied for an adjustment of status.

Generally, yes. If they entered the US legally and married a US citizen, then any overstay will usually be forgiven when they apply for AOS. This isn't a favor the US government is doing for the alien, but is a courtesy to the US citizen who married them.

With such a significant prize, you can imagine that there's a considerable amount of fraud that goes on to obtain a green card this way. Unfortunately, it's very difficult to catch the fraudsters at the time they apply for AOS. The most significant difference between an alien who acquires a green card this way and an alien who gets a CR1 visa from a US consulate abroad is the requirement that the alien must not have intended to immigrate when they entered the US with their non-immigrant visa or other border pass. The CBP and USCIS cannot read people's minds, but their intent is easier to gauge if they knew their future spouse before entering, and married before their I-94 expired. It's a lot tougher to question the intent when the alien didn't meet their new US citizen spouse until after they entered the US. In many cases, the alien may have had every intention of leaving the US before their I-94 expired, but they changed their minds after spending some time in the US. After overstaying their visa, they start looking for ways to stay legally, and discover the most straightforward path is by marriage to a US citizen. It's still fraud, but how the heck does USCIS prove it?

As Just Bob said, USCIS sometimes catches the fraudulent aliens when it comes time to apply for removal of conditions. It's easy to marry a US citizen you don't love in order to get a green card. It's a lot harder to keep up the charade for two years so that the US citizen will cooperate and file the I-751 jointly. More often than not, a fraudster would just divorce the USC and self-petition, which gives USCIS more latitude to determine whether the marriage was entered in good faith.

You can't really blame USCIS for this apparent loophole because USCIS doesn't write immigration law. Perhaps someday congress will decide that this route provides too much incentive for fraud, and they'll require all applicants to return to their home country and wait out a spousal visa.

[lucyrich 20]

Generally, yes. If they entered the US legally and married a US citizen, then any overstay will usually be forgiven when they apply for AOS. This isn't a favor the US government is doing for the alien, but is a courtesy to the US citizen who married them.

Minor correction: when you say "the overstay is forgiven" it almost sounds like the USCIS grants some sort of pardon or something. In fact it's that Congress provided for no penalty whatsoever for an overstay unless and until the overstayer leaves the US. See INA 212(a)(9)(B). If the overstayer files for adjustment of status, the USCIS cannot deny the adjustment of status without grounds, and the law doesn't provide any such grounds, at least not based on the overstay (there may be some OTHER reason to deny an adjustment, of course).

If someone overstays, then files for adjusment of status and then leaves the US before adjustment is complete, then INA 212(a)(9)(B) does make that person inadmissible, regardless of whether he/she has advance parole. So an overstayer should NOT leave the US until the green card is in hand.

It's the way Congress wrote the law. It's kind of a perverse incentive for overstayers to remain in the US. But only Congress can change it.

[Brother Hesekiel 2,236]

May be deported.

Most are not.

I do not want to nitpick somebody else's post, especially, if you look at the original post, it is quite obvious that the O.P. really has "no clue" about this, so I tried to answer it in a rather simple way.

That said . . . I'm not sure I can agree with you. If USCIS determines fraud when applying for AOS, they clearly would denied the AOS petition and order the beneficiary to leave the country. If he or she does not comply, removal conditions would be initiated, which includes that ICE officers will try to find and detain the alien. Once the out-of-status immigrant is detained, he or she would be put in detention center (not a nice place to stay) and eventually deported.

Please explain to me why you would say that most such people are not being deported? I simply can't believe that. What happens to them instead, according to your knowledge of this?

Edited February 26, 2010 by Just Bob

[JimVaPhuong 4,863]

Minor correction: when you say "the overstay is forgiven" it almost sounds like the USCIS grants some sort of pardon or something. In fact it's that Congress provided for no penalty whatsoever for an overstay unless and until the overstayer leaves the US. See INA 212(a)(9)(B). If the overstayer files for adjustment of status, the USCIS cannot deny the adjustment of status without grounds, and the law doesn't provide any such grounds, at least not based on the overstay (there may be some OTHER reason to deny an adjustment, of course).

If someone overstays, then files for adjusment of status and then leaves the US before adjustment is complete, then INA 212(a)(9)(B) does make that person inadmissible, regardless of whether he/she has advance parole. So an overstayer should NOT leave the US until the green card is in hand.

It's the way Congress wrote the law. It's kind of a perverse incentive for overstayers to remain in the US. But only Congress can change it.

Actually, 8 CFR, section 245.1(b)(6) specifically disallows adjustment of status (after November 6, 1986) to any alien who failed to maintain legal status in the US, EXCEPT for immediate relatives and and certain special immigrants.

Yes, it's the law that allows them to adjust status based on the marriage and in spite of their being out of status, and not any sort of special dispensation provided by USCIS. However, an overstay IS grounds for denying an adjustment of status except in those cases. An overstayer does not have to leave the US to be denied adjustment of status.

[Darnell 8,478]

Niehls -

I heard stories of a large number of people getting permanent residency after they file for an adjustment of status.

it works, only, IF the people applying for AOS IF and ONLY IF -

they were eligible to apply for AOS.

But hei - if you are getting stories of people who were NOT eligible to apply, I'd be really hot about it.

[VanessaTony 3,567]

Minor correction: when you say "the overstay is forgiven" it almost sounds like the USCIS grants some sort of pardon or something. In fact it's that Congress provided for no penalty whatsoever for an overstay unless and until the overstayer leaves the US. See INA 212(a)(9)(B). If the overstayer files for adjustment of status, the USCIS cannot deny the adjustment of status without grounds, and the law doesn't provide any such grounds, at least not based on the overstay (there may be some OTHER reason to deny an adjustment, of course).

If someone overstays, then files for adjusment of status and then leaves the US before adjustment is complete, then INA 212(a)(9)(B) does make that person inadmissible, regardless of whether he/she has advance parole. So an overstayer should NOT leave the US until the green card is in hand.

It's the way Congress wrote the law. It's kind of a perverse incentive for overstayers to remain in the US. But only Congress can change it.

Minor correction: the overstay IS forgiven and completely wiped clean (or to use your term, "pardoned") when the AOS is complete. Otherwise, given your explanation, if I got a greencard (after lets say a 2 year overstay which normally means 10 year ban) but gave up the greencard a few years later (for whatever reason) and left the US... if I tried to visit the US anytime in the next 10 years after giving up the greencard I would encounter a ban because of my prior overstay. BUT as the overstay IS forgiven, and IS waived, it technically no longer exists and can't be held against someone.

So otherwise, yes you are correct. Overstay is ONLY pardoned (forgiven) if the AOS is completed. This is why petitioning as someone who overstayed is risky (still entirely possible, but risky) in that IF you're denied your overstay still counts against you and on being booted out you will start your ban period (which you can still a waiver for in most cases, probably all but I'm not sure). The "overstay clock" is paused once AOS processing has started so, if you're like me who is technically "out of status" given my I-94 has expired, i need to be sure to apply for AOS BEFORE 180 days to ensure that if my AOS is denied (**knock on wood**), or I need to use my AP document, I haven't accumulated enough out of status days to enact a ban.

[VanessaTony 3,567]

Do people who overstayed their tourist/visitor get the chance of becoming permanent residents? I don't understand. I heard stories of a large number of people getting permanent residency after they file for an adjustment of status.

I read the directions as it doesn't mention "Who may file?" headers. Can somebody confirm this? Or, who lied that they're just visiting, but instead got married and applied for an adjustment of status.

To answer your qn directly, if someone is the immediate relative of a USC (like a spouse) even if they've overstayed their visa (work, student or visitor etc) they are still able to adjust status on the basis of being that immediate relative. There are fees involved of course, they need to file an I-130 and the I-485 and pay both the fees for those forms.

As stated by someone else though, doing it this way is risky because unlike spousal visas (CR1, K3, K1 etc) they are not able (so I'm told) to challenge the denial if it occurs and are asked to leave the US in 30 days. Also, it's not like they can just get a GC and suddenly they can divorce or whatever, they still need to remove conditions in 2 years and prove a bonafide marriage and all that (or if a divorce happened prove it WAS a bonafide marriage). Also, like I said, if they've overstayed and are denied, they leave and their ban period would start... which would require a waiver (which isn't super dooper easy.. as in it's more than filing a simple form).

My personal opinion is it isn't worth it, but I'm working on the basis that I'm from Australia where a visitor visa isn't required because of the visa waiver program, and even if I needed the visa (for longer stay or something) it's not a hard visa to get (as long as I show strong ties to Australia of course). Some people don't really have any other option though so I try not to judge them for using the USC relative loophole even though I suffered through almost 10 months of being apart from my then fiance, and others have waited even longer while waiting for their spousal/fiance visas.

Edited February 26, 2010 by Vanessa&Tony

[skidivawannabe 2]

Out of sheer curiosity, canundocumented immigrants file for AOS? Meaning, they have no record of legal entry...

[momof1 205]

Out of sheer curiosity, canundocumented immigrants file for AOS? Meaning, they have no record of legal entry...

Someone who is undocumented is not necessarily someone who has no record of legal entry. Undocumented(illegal) persons are those who overstayed visas and those who entered illegally. Both have no status in this country and are at risk of removal at any time.

Those who entered without inspection currently cannot adjust status in country. They MUST get their visa abroad just like those who have never been in the US before. The only difference, is that if they were illegally in the US for more than 180 days they will have incurred a ban which must be forgiven.

I must say too that those who enter with a K1, even though it is a legit, must travel abroad to get their residency if their relationship with the original petitioner didn't work out. Ex: man comes on k1, but the relationship dissolved before AOS. He stayed because of their child. Years later he met and married another woman while in the US. He is ineligible for AOS in country and must file a 601 waiver before receiving his residency.

[JimVaPhuong 4,863]

Out of sheer curiosity, canundocumented immigrants file for AOS? Meaning, they have no record of legal entry...

The term "undocumented immigrant" is a euphemism made up by people who were offended by inclusion of the word "illegal", and wanted to convey some sort of implied status with the word "immigrant". An "undocumented immigrant" is not an immigrant because they have no legal immigrant status. They are more accurately called "illegal alien", but that term has become increasing un-PC.

Here's the breakdown. If they are in the US, and they have legal documentation that conveys immigrant status, then they are immigrants. If they are in the US, and they have legal documentation that conveys non-immigrant status, then they are "legal aliens" (or, if you prefer, "documented aliens"). If they are in the US, and they have no documentation that conveys any status - immigrant or non-immigrant - then they are "illegal aliens". An "undocumented immigrant" would be someone who lost their green card.

Whether an "illegal alien" can file for AOS depends on whether they have basis to apply, and whether there are any mitigating circumstances that would disqualify them. Marrying a US citizen would be a basis to apply. Not having a record of legal entry would disqualify them.

[lucyrich 20]

An "undocumented immigrant" is not an immigrant because they have no legal immigrant status.

But note that what you say is contrary to the definition of "immigrant" as found in the law. According to INA 101(a)(15), The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens .... It goes on to list all of the possible legal non-immigrant statuses. Thus, a non-citizen of the US who is in the US without any lawful status is considered an "immigrant" according to the legal definition.

The term "alien" is also precisely defined in INA 101(a)(3), The term "alien" means any person not a citizen or national of the United States.

All immigrants are aliens. All aliens without a documented legal non-immigrant status are immigrants.

Noncitizens without documented legal status are both "aliens" and "immigrants" according to the law.

And back to the question which prompted this. Someone who entered without inspection has no basis from which to adjust status. With limited exceptions for things like political asylum, a requirement of adjustment of status is being able to show that you entered legally. And in immigration matters, the immigrant always carries the burden of proving eligibility. So someone who illegally snuck across the border without being processed by immigration would generally be ineligible for adjustment of status. Hypothetically, someone who presented himself at a checkpoint and was waved through without obtaining paperwork would also generally be ineligible, because while his entry may not have been strictly illegal, he has no documentation of legal entry.