Question: Can those who entered without inspection adjust status?
Answer: Yes, if they have Sec. 245(i) eligibility. This means that they are beneficiary of an immigrant petition or labor certification filed before April 30, 2001.
Question: What about those who have no Sec. 245(i) eligibility, can they adjust status?
Answer: No. However the Department of Homeland Security is making a proposed regulation to allow them to apply for waiver of unlawful presence while in the US before they proceed to the US Consulate abroad to apply for their immigrant visa. This proposal may be approved within this year, 2012. These are alien immigrants who entered the US border without being inspected by the Immigration Officer or entered under a different name. Any alien who entered without inspection is inadmissible. This means that they are present in the United States without authorization from the USCIS. In many cases they get married to a US citizen and they tried to adjust status. If they have no pending petition on or before April 30, 2001, the sec. 245(i) eligibility, they are not qualified to adjust status. The only avenue available is to apply for an immigrant visa at the US Consulate in their country of birth. Under the current law, they will be subjected to 3 or 10 year bar for unlawful presence in the US once they leave the US The proposed regulation will allow them to file an I-601 waiver of inadmissibility for the unlawful presence while in the US The waiver is available to an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted to permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. Once the waiver is approved the alien can travel to the US Consulate to apply for green card.
For example, Jose, a Filipino, joined a tour to Cancun, Mexico and he was encouraged by a friend to enter the US through the Tijuana, Mexico border. He was able to enter the US through a friend and lived with his friend for five years. Later on he met Mary, a US citizen, while in a party. They became good partners and later on got married. In this case Mary can file a petition for Jose. However the green card can only be applied for at the US Consulate in Manila because Jose has unlawful presence. In addition, Jose will need to request for waiver of unlawful presence with the USCIS. Jose will have to prove that Mary will suffer extreme hardship if his application for green card is denied.
Note: This is not a legal advice.
Immigration news
Waiver for seamen, crewmen, those who entered without inspection, and those who entered as fiancée but did not marry their petitioner is being proposed by DHS.
On December 22, 2011, we received an approval of a waiver of misrepresentation from the Immigration Court for an alien who entered as single but actually married.
On November 7, 2011, we received an approval from the Immigration Court for waiver of misrepresentation for a person who entered the US as single but actually married. The person can now apply with naturalization.
On October 25, 2011, we received an approval of adjustment of status for an alien who was originally deported in absentia.
On September 22, 2011, we received an approval from USCIS for adjustment of status using cross chargeability that enabled the beneficiary to use the worldwide priority date (which is faster) instead of the Philippines priority date.
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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188.
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