How to acquire a green card when you do not have immigration status

Many people who no longer have a valid immigration status wonder how they can acquire a green card. Though it is not easy, there are a few methods that may be open to them. 

First, those without valid immigration status can get a green card through immediate family if they are either the spouse, parent, or an unmarried child under age 21 of a U.S. citizen. However, those who do not have lawful entry to the U.S. do not qualify. 

Those who are eligible for INA 245(i) adjustment can acquire a green card. The 245(i) adjustment, which ended on April 30, 2001, still enables certain individuals who are present in the U.S. who would not normally qualify to apply for adjustment of status to obtain lawful permanent residence, provided they meet specific qualifications. For example, if a family applied for permanent residency, but one child was not able to receive a green card because he or she was over age 21, then that child may apply for a green card through either their U.S. citizen parents or through an employment-sponsored path. 

If someone lost their valid immigration status in the midst of an application for an employment-based I-485, and they had legal status at least 180 days before starting their application, then they may be eligible to adjust their status even if they do not currently possess status now. 

Another method is through the I-601A, or an application for provisional unlawful presence waiver, which is available for those whose parents or spouse are U.S. citizens. From August 2016 onward, those whose parents or spouse are legal permanent residents are also eligible to apply for I-601A. It is not possible to receive a green card while staying in the U.S. through this method, but if applicants’ requests are approved, they may return to the U.S. by completing the process through a consulate or the U.S. Embassy. 

It is difficult to get approved for an I-601A waiver. The most important requirement is to be able to explain and provide evidence that refusal of an applicant’s admission to the U.S. will cause extreme hardship to their U.S. citizen or legal permanent resident parent or spouse. For example, applicants could show evidence that they are supporting their parents financially, caretaking for their sick parent or spouse, or that they oversee the family’s business. 

After getting approved for an I-601A, applicants must wait for their case to be processed through the department of state and pay a filing fee. If their application is denied, the option remains to stay in the U.S. without leaving — though the USCIS will have the applicant’s immigration status, deportation will not take place unless the applicant is involved in immigration scams or issues of public safety.

Law Offices of Gary J. Kim
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