How Can An Undocumented Immigrant Become Legal In The US? Pathways To Legal Status

If you have entered the United States illegally or have overstayed your visa, you are considered an undocumented immigrant. However, there are certain pathways you can take to gain legal status in the U.S. and remain in the country.

How can an undocumented immigrant become legal? That’s exactly what we’re here to cover.

We’ll explain the options that will allow you to file for lawful permanent residence (a Green Card) so you can have your status adjusted and stay in the U.S.

Plus, we’ll share how our experienced immigration attorneys at Spar & Bernstein can help you throughout the process.

Bradford H. Bernstein

This article was written and reviewed by Bradford H. Bernstein, a second-generation leader at Law Offices of Spar & Bernstein, P.C., who has helped over 100,000 clients with immigration and personal injury issues. Brad joined the firm in 1993, became a partner in 1997, and assumed leadership in 2000 after Harry Spar retired.

View Brad's Bio

Bradford H. Bernstein

Who Is Considered An Undocumented Immigrant?

An undocumented immigrant is a person who was born in a foreign country and who has no legal right to be in or remain in the United States.  

Other terms used for an undocumented immigrant include:

• Unauthorized immigrant
• Unlawful non-citizen
• Illegal alien

One can become an undocumented immigrant through a variety of ways, including:

Expired Visa

In this situation, you entered the U.S. legally, with a valid nonimmigrant visa such as a tourist visa or a student visa.

Upon being inspected and admitted into the country, the U.S. Department of Homeland Security (DHS) officials listed two dates in your Form I-94, Arrival/Departure Record: the date you arrived in the U.S. and the date on which you were required to depart.

Remaining in the country after the approved length of stay means you have overstayed your visa and have lost your lawful status.

In this case, as soon as the departure date passed, you began to accrue unlawful presence and became an undocumented immigrant.

Illegal Entry

If you entered the U.S. without inspection, you are considered an undocumented immigrant. Crossing the border without inspection by a U.S. border patrol agent automatically gives you illegal status.

The consequences of being caught by officials as an undocumented immigrant include:

• Being placed in removal proceedings and receiving an Immigration Court date
• Deportation from the U.S.
• A three to ten-year bar from re-entry to the U.S. depending on the length of your illegal stay

Can An Illegal Immigrant Become Legal?

According to estimates, there are approximately 11 million undocumented immigrants in the U.S. However, this number could be much higher.

If you are in this situation, you must file an application for immigration relief that may prevent deportation, provide temporary status, or offer a path to legal residency.

Sometimes, you may be eligible to file an application for adjustment of status — generally known as a Green Card application.

The following scenarios allow you to file for a Green Card application and obtain legal permanent resident status.

Marrying A US Citizen Or A Lawful Permanent Resident

One way to adjust your status to that of a lawful, permanent resident is if you are married to a U.S. citizen or a lawful permanent resident and file for a Green Card.

Requirements include:

• Your marriage must be bona fide, meaning you entered it in good faith, with the desire to establish a life together
• All previous marriages must be legally terminated

1. If you entered the U.S. legally and married a U.S. Citizen, you can apply for a Green Card as an immediate relative while still in the U.S., regardless of how long you have overstayed your visa — provided that you were inspected and admitted into the U.S.

In this case:

• File Form I-130, Petition for Alien Relative, which serves as evidence that your marriage is legally valid
• File Form I-485, Application to Register Permanent Residence or Adjust Status, along with supporting documents

What are the challenges?

Not every entry is considered a valid admission for Green Card purposes. For example, if someone is paroled into the U.S. after inspection at a port of entry, it’s only temporary. This means they might be inspected and allowed to enter, but not officially admitted.

2. Suppose you entered the U.S. legally and married a lawful permanent resident. In that case, you must return to your home country and conclude the immigration process through the U.S. consulate in your home country unless priority dates are current for the F2A visa category on the State Department Visa Bulletin and you are in legal status or until such time that your spouse becomes a USC. Then, you would be eligible to adjust your status in any of these scenarios. You may also be in the USA on a long-term visa, such as a student visa, and if you were to marry a lawful resident and your spouse files an I-130 visa petition for you. If the priority date becomes current on the State Department Visa Bulletin, you may also be eligible to adjust your status.  If you leave the USA for consular processing abroad and remain unlawfully present in the USA for more than 180 days (less than 6 months), you may trigger a three or ten-year bar for re-entry that would prevent you from returning without filing a waiver. To begin the process of applying for a Green Card after marrying a lawful permanent resident and applying from outside of the U.S., file Form I-130.

What are the challenges?

If you have accrued unlawful presence in the U.S., departing to apply for a Green Card may trigger a bar to re-enter the U.S. For example, staying unlawfully for more than 180 days but less than one year can result in a three-year bar, while being an illegal immigrant for more than one year can result in a ten-year bar.

Filing a waiver before leaving the U.S. provides evidence that your spouse will suffer “extreme hardship” due to your long absence. It may waive your re-entry bar and allow you to return to the U.S. after you’ve passed your consular interview.

The application process for both Green Cards and waivers can be complex and confusing. Our immigration attorneys at Spar & Bernstein will determine which pathway is right for you, and help you file all the necessary paperwork.

Applying For Asylum Status

Another way to become legal is to apply for asylum status. Among other requirements, you must prove you have suffered persecution in your home country or fear being persecuted if you return, on the grounds of:

• Political opinion
• Religion
• Race
• Nationality
• Membership in a particular social group

Whether you entered the U.S. legally or illegally, to be eligible for asylum status, you must:

• Be physically present in the U.S.
• Properly file the asylum application within a year of your last entry (there are certain exceptions)
• Be unwilling or unable to return to your home country due to past persecution or fear of being persecuted in the future
• Not be involved in activities that can bar you from asylum such as posing a danger to U.S. security, having been sentenced for a serious crime, having been part of a group that persecuted another person based on religion, race, political opinion and other circumstances

To start your asylum status case:

• File Form I-589, Application for Asylum and for Withholding of Removal
• Attach the additional documents needed to support your claim

If you win your asylum case, you can apply for a Green Card one year later.

If your family is already in the U.S., you may add them to your asylum application form so they are also granted asylum, depending on the relationship.

If your family members were victims of separate persecutions, they can file for asylum status separately. If your application is denied, your family members can add you to their applications.

If your family is outside the U.S. when you obtain asylum status, file a separate application so they can join you in the U.S. This should be done within two years from the date you were granted asylum.

Requesting Cancellation Of Removal

If you have lived in the U.S. for an extended period and are facing removal in immigration court, you may be eligible to obtain lawful status and a Green Card through Non-LPR Cancellation of Removal and Adjustment of Status.

Non-LPR Cancellation of Removal is only available if you have been placed into removal proceedings, meaning the government has initiated a legal process to deport you from the U.S. You cannot benefit from it under other conditions.

To file for a Green Card, you must meet the following criteria:

• You lived and were physically present in the U.S. for a minimum of ten years
• Your deportation from the U.S. will cause “exceptional and extremely unusual hardship” to your spouse, child, or parent, who is a U.S. citizen or permanent resident
• You have not violated U.S. laws and have not been convicted of certain serious crimes
• You can show evidence of good moral character for the past ten years

To request cancellation of removal, file Form EOIR-42B.

Also note that U.S. law allows only 4,000 Green Cards to be issued annually.

Applying For A U Visa

The U nonimmigrant visa was created by the Congress under the Victims of Trafficking and Violence Protection Act in October 2000.

A U visa is given to people who have been victims of certain crimes to encourage them to cooperate with police without fear of deportation.

A U visa can provide you with legal status, employment authorization (work permit) and the possibility to apply for a Green Card under certain conditions.

To qualify for a U visa:

• The crime committed must have violated U.S. laws
• You must have suffered physical or mental abuse as a victim of qualifying criminal activities such as abduction, hostage-taking, trafficking, involuntary servitude, domestic violence, rape, or similar circumstances
• You must provide information about the criminal activity in question
• You must be willing to help in the investigation of the crime

To apply for a U visa, file Form I-918, Petition for U Nonimmigrant Status.

After you are granted a U visa, you can petition to bring your spouse and children to the U.S.

Serving In The US Armed Forces

You may be eligible to adjust your illegal immigrant status and apply for a Green Card or apply directly for U.S. citizenship if you have served in the U.S. armed forces during qualifying wars and conflicts, such as:

• World War I
• World War II
• The Korean War
• The Vietnam War
• The Persian Gulf War
• Operation starting September 11, 2001, including the War on Terrorism, Iraq Hostilities and Operation Enduring Freedom

To adjust your status after serving in the U.S. armed forces:

• File Form N-426, Request for Certification of Military or Naval Service
• File Form N-400, Application for Naturalization

Since each individual scenario is unique, your pathway to obtaining legal status as an undocumented immigrant in the U.S. may vary.

To determine which pathway is right for you, contact our immigration attorneys at Spar & Bernstein. We’ll look into your case and explain your options.

How Can An Undocumented Student Become Legal?

There are more than 408,000 undocumented students in the U.S., including Deferred Action for Childhood Arrivals (DACA) recipients.

Although there is no federal law prohibiting admission of undocumented immigrants to public and private U.S. colleges, depending on the state, institutional policies and restrictions may be in place.

For example, in Virginia, you may be required to submit proof of legal residency or citizenship, and you may be denied admission if you do not have documentation.

Some states also impose restrictions and refuse state aid for undocumented students.

Overstaying A Student Visa

If you came to the U.S. on a student visa, your approved length of stay covers the duration of your studies.

Once your studies are over, you start building visa overstay.

DACA

If you arrived in the U.S. with your parents as a child and lost your temporary legal status when you turned 21, you may apply for DACA.

Deferred Action for Childhood Arrivals is a program that can temporarily protect you from deportation if you entered the U. S. before you turned 16. Becoming a DACA recipient allows you to:

• Study in the U.S.
• Work in the U.S.
• Obtain a social security number
• Obtain a driver’s license
• Apply for renewal every two years
• Travel outside of the U.S. and return (in certain circumstances)

If, as a DACA recipient, you receive higher education, U.S. employers may sponsor you for a Green Card as a high-skilled employee.

Note that DACA is just temporary solution to remain in the U.S. The future of the program is uncertain due to numerous legal challenges.

Our attorneys at Spar & Bernstein will review your case and look for alternative options to help you stay in the U.S. legally, if you are denied DACA or if the program is terminated.

How Can An Illegal Immigrant Become Legal? FAQs

For more information on how an undocumented immigrant can become legal, check out the section below.

What are the risks of applying for legal status while undocumented?

Applying for legal status while undocumented can carry certain risks, such as being placed in removal proceedings or facing prolonged delays. Schedule a consultation with our immigration team at Spar & Bernstein to understand the challenges and prepare for the process the right way.

Can I apply for adjustment of status if my visa expired?

Yes, if your visa has expired, you may still be able to adjust your status through family or employment-based sponsorship. However, you may need to address any unlawful presence issues and apply for a waiver if necessary. Contact Spar & Bernstein for legal advice.

What can I do if my application for immigration relief is denied?  

If your application for immigration relief is denied, you may have the right to appeal the decision, reapply, or explore other forms of relief. Consult with our immigration attorneys to understand the best course of action.