Family-Based Immigration: Adjusting Status Without Inspection

The intersection of family-based immigration and status adjustment for individuals who have entered the United States without inspection presents a labyrinth of legal complexities. This article examines the pathways available to these individuals and delves into the interplay between immigration and family law, providing a structured overview of the legal landscape.

Understanding Unlawful Entry and Adjustment of Status

What Constitutes Unlawful Entry?

Unlawful entry occurs when an individual enters the United States without undergoing the appropriate inspection by immigration officers or without proper authorization. This is often referred to within legal statutes as “entry without inspection” (EWI).

Adjustment of Status Overview

Adjustment of status is the process through which an individual may obtain lawful permanent resident status—commonly known as obtaining a Green Card—without having to leave the United States to complete visa processing.

Legal Pathways for Family-Based Adjustment of Status

Immediate Relative Visas

Spouses, Children, and Parents of U.S. Citizens:
- U.S. immigration law (specifically, the Immigration and Nationality Act [INA] §201(b)) provides for the unlimited issuance of visas to immediate relatives of U.S. citizens, which can sometimes facilitate the process of adjusting status even after an EWI.

Family Preference Visas

Extended Family Members:
- These visas are numerically limited and include unmarried sons and daughters of U.S. citizens, and siblings when the U.S. citizen petitioner is over 21 years old, as outlined in INA §203(a).

Challenges and Solutions

Entering the U.S. without inspection presents significant barriers to adjusting status. However, certain legal remedies may be available:

Section 245(i) Adjustment

Legislative Provision:
- The Legal Immigration Family Equity (LIFE) Act’s Section 245(i) allows certain individuals who have entered without inspection to apply for adjustment of status if they are beneficiaries of a labor certification or a petition filed on or before April 30, 2001.

Consular Processing and Waivers

INA §212(a)(9)(B)(v):
- For individuals ineligible to adjust status within the U.S., consular processing combined with an I-601 Waiver for unlawful presence may offer a path to obtaining a visa abroad and reentering legally.

Special Cases: VAWA and U Visa

Violence Against Women Act (VAWA):
- Allows certain abused spouses or children of U.S. citizens or permanent residents to file a self-petition confidentially.
U Visa:
- Offers relief to victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement.

The Complexity at the Crossroads of Immigration and Family Law

Impact on Family Units

Family-based immigration cases involving unlawful entry can significantly impact family unity and stability, requiring careful legal navigation to protect the rights and welfare of all family members.

Legal Representation Importance

Given the complexities and potential consequences, legal representation by an experienced attorney is critical in navigating the intersection of immigration and family law.

Author’s Expertise

As an attorney specializing in immigration and criminal law in New York and New Jersey, I bring first-hand experience in dealing with cases where family law and immigration intersect. This expertise is invaluable in guiding clients through the intricacies of status adjustment post-EWI.

Conclusion

Navigating the process of adjusting immigration status after an entry without inspection is complex and fraught with legal challenges. Understanding the nuances and available legal remedies is crucial for individuals and families embarking on this path.

FAQ – Frequently Asked Questions

Q: Can a person who entered the U.S. without inspection ever become a lawful permanent resident?

A: Yes, under certain circumstances, such as being an immediate relative of a U.S. citizen or eligible for special programs like Section 245(i), VAWA, or the U Visa, it may be possible to adjust status to lawful permanent resident.

Q: What is Section 245(i) of the Immigration and Nationality Act?

A: Section 245(i) allows certain individuals who entered without inspection and are beneficiaries of a qualifying petition or labor certification filed on or before April 30, 2001, to apply for adjustment of status.

Q: Does marrying a U.S. citizen automatically allow someone who entered without inspection to adjust their status?

A: No, marriage to a U.S. citizen does not automatically confer the ability to adjust status, especially if the individual entered without inspection. Legal avenues such as Section 245(i) adjustment, consular processing, or a waiver must be explored.

Q: What is consular processing?

A: Consular processing is the procedure of applying for a visa through a U.S. consulate or embassy in another country. It’s an alternative path for individuals who

cannot adjust their status within the United States. Following a successful consular interview and issuance of a visa, the individual can then enter the U.S. legally as a lawful permanent resident.

Q: What is an I-601 Waiver, and who needs it?

A: The I-601 Waiver, also known as the Application for Waiver of Grounds of Inadmissibility, is a form used by individuals who are ineligible for a visa or green card due to certain grounds of inadmissibility, such as unlawful presence in the U.S. It is a request for forgiveness from immigration authorities and, if granted, it waives the grounds of inadmissibility so the individual can proceed with obtaining a visa.

Q: Can a victim of a crime adjust their status if they entered without inspection?

A: Yes, victims of certain crimes may be eligible for a U Visa, which provides nonimmigrant status to victims who have suffered substantial mental or physical abuse due to the crime and who are helpful to law enforcement in the investigation or prosecution of criminal activity. This can potentially lead to an adjustment of status.

Q: What does VAWA stand for, and how does it help in adjusting status?

A: VAWA stands for the Violence Against Women Act. It allows certain abused spouses, children, or parents of U.S. citizens or lawful permanent residents to self-petition for lawful status in the U.S., receive employment authorization, and eventually apply for a Green Card, irrespective of how they entered the country.

Q: Are there any other forms of relief for those who entered the U.S. without inspection?

A: In addition to the aforementioned options, there may be other forms of relief available depending on individual circumstances, such as asylum, Temporary Protected Status (TPS), or Special Immigrant Juvenile Status (SIJS) for unaccompanied minors. Consulting with an immigration attorney is critical to explore all possible options.

Q: Is it advisable to pursue adjustment of status without legal assistance?

A: Due to the complexity of immigration laws and the potential risks involved, it is highly advisable to seek the assistance of an experienced immigration attorney. Legal representation can guide individuals through the intricacies of the process and increase the chances of a successful outcome.

It is important to note that immigration laws are subject to change, and the availability of certain immigration benefits can be affected by new policies or legislation. Therefore, staying informed and seeking professional legal advice is crucial for anyone seeking to adjust their status in the United States.

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