If you are an undocumented foreign national that is in removal proceedings, you may have the option to pursue an adjustment of status in order to obtain a lawful permanent residency, or a green card. The process involves having a relationship with a U.S. lawful permanent resident or a U.S. citizen. Under certain circumstances, foreign nationals may be able to adjust their status when in the removal process and if there was no eligibility before the time of arrest. This process is also available if the foreign national was not aware that he or she was eligible to apply for a lawful permanent residency.

In order to apply for an adjustment of status, you will first need to meet specific requirements, which can include demonstrating that you have admissibility to the United States and that you have a relative who is a qualifying U.S. lawful permanent resident or U.S. citizen. You may also need to demonstrate that you do not have a record of violating immigration laws, your qualifying relative has petitioned for your visa that the United States Citizenship and Immigration Services has approved, and that your visa identification number or priority date is readily available.

Additionally, you may be required to demonstrate that you legally entered the United States. In order to demonstrate this, you will need to show that you were admitted and inspected at a port of entry or at the border and that your admittance was authorized. Although this specific requirement may seem to exclude undocumented immigrants, there are some exceptions that can apply to each requirement for the adjustment of status. One exception to the requirement of a lawful entry arises in the Immigration and Nationality Act §245(i).

Immigration and Nationality Act §245(i)

This area of the Immigration and Nationality Act applies to undocumented foreign nationals who were the beneficiaries of a visa application that was submitted on to before April 30th, 2001, to the United States Citizenship and Immigration Services. It also applies to undocumented foreign nationals who were beneficiaries of labor certifications that were submitted in the same date to the Department of Labor. Further, it may be possible to avoid the lawful entry requirement if the undocumented foreign national was a beneficiary of a labor certification or a visa  petition that was filed between the dates of January 14th, 1998 and April 30th, 2001 or were physically in the United States on the date of December 21st, 2000.

Based on the Immigration and Nationality Act §245(i), foreign nationals have the burden of proof to demonstrate that the exception is applicable. Undocumented foreign nationals will need to demonstrate that the labor certification or visa petition was approved when it was filed. All evidence and supporting documentation will need to be submitted at the time of the filing. The United States Citizenship and Immigration Services may issue an NOID, or Notice of Intent to Deny, or a denial when a petition has been filed without necessary supporting evidence.

An Adjustment of Status in the Removal Proceedings

When adjusting a status in the removal proceedings, one of the first steps is to submit an I-130 form, or Petition for Alien Relative form, to the United States Citizenship and Immigration Services. This form is submitted by the qualifying relative of the undocumented foreign national. Qualifying relatives can file an I-130 form for:

  • Their spouse;
  • Unmarried children under the age of 21;
  • Married children of any age;
  • If 21 years of age or older, a form can be filed for siblings; and
  • If 21 years of age or older, a form can be filed for parents.

It should be noted that supplementary information may be required contingent on the relationship between the undocumented party and the qualifying family member. It is also important to note that under specific circumstances, the following parties are not eligible to file an I-130 form: Adoptive parents, Adopted children, Step-parents, Grandparents, Nephews, Nieces, Grandchildren, uncles, Aunts, Cousins, and/or Parent-in-laws.

Once the acceptable relative of the undocumented foreign national who is in removal proceedings has submitted the form, the reviewing agency will make a determination if whether the undocumented person will be eligible for a lawful permanent residency.

The process can involve making sure that the relative is in fact a citizen or lawful permanent resident and that he or she is in fact related to the foreign national. Once the agency has granted the petition, the subsequent step would be to file an I-485 form, which is an adjustment of status form, to an immigration judge.

It is important to note that an immigration judge may not review or evaluate an adjustment of status petition the same way the United States Citizenship and Immigration Services will. In some cases, the undocumented foreign national can be required to meet a higher standard of proof.

Understand Your Options, Speak to a Professional Immigration Law Attorney

If you or someone you know is an undocumented foreign national that has been either recently arrested or has been placed in the process of removal from the country, applying for a lawful permanent residency may be the last option perceived possible. Nonetheless, applying for an adjustment of status through a qualifying member may be possible.

The process to obtain a green card when in the process of removal is a sensitive matter that should be handled swiftly. If you or someone you know is facing removal, it is important to know that there may be an opportunity to remain in the country by filing for a lawful permanent residency. Speak to a qualified immigration law attorney who can review your case and help you navigate the complex legal process.

At the King Immigration Law Group, helping those who are facing deportation or removal from the country is of utmost importance. As a highly experienced law firm, the King Immigration Law Group works diligently to protect the rights of those facing immigration law matters. If you or someone you love has recently received notice of removal from the country, it is important to know what legal options are available based on the specifics of the case. Consider contacting the firm today for a free case evaluation.