Broadly speaking, the grounds of inadmissibility are barriers to U.S. entry based on things like criminal and security violations, health troubles, likelihood of becoming a "public charge" and requiring need-based government assistance, and immigration violations.
The permanent bar comes from Section 212(a)(9)(C)(i)(I) of the I.N.A., which makes inadmissible “Any alien who (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or (II) has been ordered removed under section 235(b)(1), section 240 , or any other provision of law, and who enters or attempts to reenter the United States without being admitted.” This part of the law came from legislative changes made in 1996, called the Illegal Immigration Reform and Immigrant Responsibility Act or IIRIRA.
For example, let’s say someone crossed the U.S. border from Mexico illegally, stayed for a year, went home for a while, and then tried crossing the U.S. border a second time. That second attempt (whether it succeeded or not) makes the person inadmissible under this section. Leaving and coming back a few times so that no stay is longer than one year would not have helped, either. The word “aggregate” in the law means that it’s enough that the person’s stay added up to one year in total.
Similarly, someone who was ordered removed from the U.S., leaves or is transported to the home country, and then tries to enter without going through the required admission procedures, will be subject to the permanent bar.
The first thing to understand in unpacking this part of the law is what “unlawful presence” means. In general, it refers to someone who either entered the U.S. illegally (such as by crossing the border secretly, or stowing away in a boat or car) or one who came to the U.S. legally (on a visa or the Visa Waiver Program/VWP) and then failed to leave on time.
One of the main exceptions to the permanent bar has to do with timing. Since this section of the law went into effect on April 1, 1997, people who last reentered the U.S. before April 1, 1997 after a previous deportation are not subject to the permanent bar. Also, people who accrued unlawful presence before April 1, 1997 need not count this time towards the aggregate one year needed to trigger the permanent bar.
Unfortunately, the drafters of this law failed to spell out an exception for minors (people under the age of 18) with regard to accruing unlawful presence for purposes of the permanent bar. They made a clear exception for them in the case of a related bar for unlawful presence of over six months, leading many to believe that they'd intended it to apply in this situation, as well. U.S. government policy has gone back and forth on this, but in early 2024 the trend seems to be to hold to the letter of the law, and say that even a young person's unlawful time in the U.S. counts toward the permanent bar.
Many grounds of inadmissibility can be waived, or automatically expire after a set period of time. But the permanent bar is harder, though not impossible, to overcome.
The statute says that someone subject to the permanent bar can request permission to enter the U.S. after waiting ten years first. The government interprets this to mean ten years outside the United States. But after these ten years, you can’t just go ahead and submit a visa or green card application by the usual methods. You must first obtain the U.S. government’s “consent” to your application.
To request this consent for a green card application, most applicants must use a form called “Permission to Reapply for Admission” or I-212, issued by U.S. Citizenship and Immigration Services (USCIS). For a nonimmigrant visa, you’ll need to request an exercise of discretion. Asylees or refugees who are applying to adjust status would instead file a Form I-602, "Application by Refugee for Waiver of Inadmissibility Grounds." (Also according to 2009 USCIS memo.)
There is also a waiver to the permanent bar available to VAWA self-petitioners who can show a connection between their having been battered or subjected to extreme cruelty and their removal, departure from the U.S., reentry or reentries into the United States, or attempts at reentry.
What's more, refugees and asylees who are applying to adjust status in the United States need not wait until ten years are up to apply for USCIS consent to apply for a green card. (This is according to a 2009 USCIS memo.)
Other, more limited exceptions to the permanent bar also apply in unusual cases.
If you think you might be eligible for a visa or green card, but are potentially affected by the permanent bar, definitely consult an experienced immigration lawyer. The lawyer can confirm whether you are subject to this bar and help develop a strategy for overcoming this in your quest for a visa or green card.
]]>For background information about eligibility and SIJS advantages and disadvantages, please read Special Immigrant Juvenile Status: Who Is Eligible.
A child is eligible for Special Immigrant Juvenile Status only if a court in the state where they live finds the child is neglected, abused, abandoned, or something similar, by one or both parents, and that it is not in the child's best interest to return to their home country. Court terms, procedures, and legal standards vary from state to state. The court will need to issue something usually called "special findings" or a "predicate order."
A child who deserves Special Immigrant Juvenile Status most often makes it into the court system in one of three ways:
Whichever process is used, the attorney will need to bring the abuse, neglect, or abandonment to the attention of the court, and will need to show the judge that it is not in the child's best interest to return to the home country.
The child and family members can expect to be interviewed and might need to testify in court. As much evidence as possible should be gathered to show the abuse, neglect, or abandonment, and the child's relationship to the parent and any proposed guardian—for example, birth certificates, medical records, and reports by police, teachers, or social workers. Affidavits might be needed from the applicant as well as witnesses, including in the child's home country. If the biological parents are willing to sign a form consenting to someone else being appointed guardian, that can move things along significantly. Including articles about conditions in the home country can also be relevant and helpful, for purposes of meeting the "best interests" standard.
The court process can take many weeks. Most states require advance notice ("service of process") to the parents and the child about the court proceedings. Special rules might apply for serving notice on parents outside the United States, with international law overlaps (as will be the case if parents are in one of the countries that has signed onto a treaty known as the Hague Convention on the Protection of Children).
The court will also need time to appoint a Guardian ad Litem (GAL), and then the GAL will need to schedule a home visit. The court may also order a background check.
Once the court issues an order, you'll want to make sure it includes enough factual detail to avoid follow-up questions from USCIS. A good lawyer can potentially draft a proposed order for the court to draw from
Once a court has issued an order finding that the child was abused, neglected, or abandoned, and that it is not in the child's best interest to return to the parents' home country or place of residence, the child may file a petition with U.S. Citizenship and Immigration Services (USCIS) requesting Special Immigrant Juvenile Status. This is done using Form I-360, available for free download from the USCIS website, and by including accompanying documents including a birth certificate (or other proof of age) and copies of the court order of dependency, custody, or guardianship.
The child (or someone acting on the child's behalf) must fill out all relevant portions of the petition. This same petition is used for many other types of immigration procedures, so read the from instructions carefully to see which parts apply to Special Immigrant Juveniles (and leave the other sections blank).
Children over age 14 must sign the petitions themselves, younger children may have a parent or guardian sign (for example: "Jane Littleton by her guardian Joe Biggs").
Currently, there is no fee for filing the I-360 petition. Look carefully for the filing address, shown on a special USCIS page. The exact address depends on your reason for filing, so click "Special Immigrant Juvenile."
The child is expected to file the petition while unmarried and while the court order is still in effect. In the past, this meant that the child had to file the petition before turning 18 years old. However, new regulations promulgated in 2022 state that if the court order ends only because the child turned 18, the child will have up to age 21 to file the petition.
Be sure to get it into USCIS's inbox BEFORE the child turns 21. Waiting until the child is 21 to submit the petition will not do it. If you're worried about the petition arriving on time (before the child's 21st birthday) by mail, there's a possibility for contacting USCIS and getting an in-person appointment for filing purposes. This is a new procedure, however, so do your best to avoid having to try it.
Another exception to the valid-court-order requirement is made if the child has been adopted, placed in a permanent guardianship, or reached another child welfare permanency goal. And so long as the I-360 petition has been approved, it's okay for the child to get married (a relatively recent change made in recognition of the fact that USCIS backlogs can create an unfairly long wait).
USCIS will review the I-360 and the other evidence to determine whether the child qualifies for Special Immigrant Juvenile Status. If USCIS believes that more evidence is needed, it can issue a "request for evidence" or RFE. The officer reviewing the file should accept the findings of the judge as to whether the child was abused, neglected, or abandoned. However, the officer may decline to grant status based on a belief that the court order was obtained only for the purpose of immigration to the United States.
USCIS is supposed to make a decision on the petition within 180 days from the time it was submitted. It has been getting better at doing so; you can check its latest processing times online.
After USCIS approves the I-360, the child might need to wait before taking the next step toward applying for a green card. That's because the child is not eligible until they have a current "priority date," meaning that a visa is available to them in the fourth preference (EB-4) immigrant visa category for special immigrants. (Oddly, this is technically an employment-based category, as are all "special immigrant" visa categories.)
Owing to annual limits and high demand, however, this category has been backed up in recent years, leading to years-long waits between USCIS approval of the I-360 and applicants being able to move forward with a green card application.
Fortunately, applicants with approved I-360s but whose priority dates are not yet current can qualify for a sort of temporary limbo status called deferred action, which comes with protection from deportation and the chance to apply for a work permit. See the USCIS news release and Policy Alert for details. To apply for the work permit (employment authorization or an "EAD") the child will need to submit USCIS Form I-765 and indicate category (c)(14) in answer to Question 27.
Once the priority date is current, the child will need to submit Form I-485 "Application to Register Permanent Residence or Adjust Status" and supporting documents to USCIS. (This may also be submitted at the same time as the I-360 petition if there's no wait in this category, but that hasn't happened lately).
Approval is not automatic. First, applicants must prove that they are not inadmissible (though some grounds of inadmissibility can be waived in SIJS cases, for humanitarian, family unity, or public interest reasons). Applicants must also show that they deserve a favorable exercise of discretion.
Special Immigrant Juveniles could, until March 31, 2024, ask USCIS to waive the I-485 application fee using Form I-912, request for fee waiver. But if possible, it's better to wait until April 1, 2024, at which time this fee exemption becomes automatic.
Otherwise, the green card process is similar to the process for family-based visas. See How to Submit an Adjustment of Status Packet to USCIS.
Obtaining SIJS is a multi-step, complex application process. It's well worth consulting with an experienced attorney for a full analysis of your case's potential to win, and potentially assistance with the application process. A child who is placed into removal (deportation) proceedings should definitely hire an attorney for the best chance of success.
]]>The government will typically detain immigrants because it believes either that they are “flight risks” and might secretly move to another location within the U.S. before it can finish deciding whether or not to deport them, or that they pose a public safety threat. Detention allows the government to secure an immigrant’s appearance before the Immigration Court (also called the Executive Office for Immigration Review or EOIR).
There are many reasons why foreign nationals can be detained by the Department of Homeland Security (DHS) and its enforcement arm, Immigration and Customs Enforcement (ICE). These include, but are not limited to the people having:
The upshot is that the immigration detention process can move quickly, leaving loved ones scrambling to figure out where their family member is.
When you first find out (or hear rumors) that someone you know is in U.S. immigration detention, you can potentially find out their location using the ICE detainee locator website.
It will help to have the person’s Alien Number (A#) on hand, if you know it. (A green card or work permit or deportation-related correspondence from U.S. immigration authorities will show this number.) Otherwise, you’ll need to know their date of birth, country of birth, and name as it appears in ICE’s system. You might need to try different names or different spellings of names.
Unfortunately, if the person was only recently detained, the website might not be updated with the latest information. Also, the system does not give information for people under 18 years of age. In such cases, you’ll need to contact the ICE Enforcement and Removal Operations (ERO) field office nearest to where the person was picked up.
The person might be detained in an ICE detention facility or a local jail or correctional facility that is under a contract with ICE (known as an Intergovernmental Services Agreement or an IGSA) to house ICE detainees. In either situation, an ICE deportation officer will have been assigned their case. If you have questions about how to contact or visit a detainee, or have a concern about the detainee, these questions should be directed to the assigned deportation officer.
For instance, ICE is required to follow national detention standards for the safety of both staff as well as detainees, so if you have information about a detainee’s medical condition, this absolutely should be brought to the deportation officer’s attention. Another option (or necessity, if the ICE officer refuses to speak with you) is to hire an experienced immigration attorney to assist you in tracking down the deportation officer and maintaining lines of communication.
Be careful about what you reveal to the officer, however. Say nothing about the person’s country of citizenship or immigration status (or the lack thereof) in the United States, as anything you say can be used as evidence against the detainee in immigration court.
It is important to act quickly, especially if the detainee has been deported from the U.S. previously or has an outstanding removal order (in which case they’ve lost the right to see an immigration judge). A detainee can be removed within a few days or even hours of the initial detention. Even if the U.S. government does not immediately remove the person, it sometimes transfers detainees between facilities, and sometimes even to other states if they appear to have no immediate family in the area. It commonly takes such actions without giving advance warning.
As indicated above, each detainee is assigned a deportation officer. The officer has the power to offer such options for release as voluntary departure, stipulated removal, or some other arrangement. The detainee (or attorney) should review any such offers carefully.
Accepting a voluntary departure, for instance, though it doesn’t leave an order of removal on the person’s record, can result in forgoing any forms of relief to which the detainee might be entitled, such as asylum or cancellation of removal. There could be other options and forms of relief (such as Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA) that an attorney who has studied that case might recommend, and that the deportation officer has not mentioned.
It is important to try to research all the options for relief prior to the beginning of formal immigration court hearings. An attorney can help with this.
Immigration detention is not very different than jail or prison. ICE either operates the facilities independently or, as mentioned above, enters into an IGSA with state or county facilities to house ICE detainees. Therefore, the physical layout of the facility, level of crowding, available amenities, and whether detainees are housed alongside state prisoners varies widely across the country.
Detainees who have medical conditions have the right to appropriate medical treatment at ICE expense. For example, if someone has recently had surgery and requires regular medication, ICE is supposed to provide this medication. Or if the person's glasses get broken, ICE should arrange for new ones. ICE does not always follow through on its obligations, however. If ICE fails to provide such care, contact an immigration attorney who can advocate on the detainee’s behalf.
In some situations, most often when there's a case to be made for the foreign national to receive a U.S. green card, an immigration judge might require the detainee to get a medical examination. How can someone go to the doctor if in a locked facility?
While it is slightly more difficult than the normal procedure, and might be more expensive, you should be able to find a doctor who is willing to go out to the detention facility and conduct the examination.
Section 212(a)(1) of the Immigration and Nationality Act (8 U.S.C. § 1182) requires that an applicant for permanent residence or a green card not be inadmissible due to a health-related issue. Minor medical problems won't prevent someone from getting a green card, but more serious diseases, drug addiction, or certain types of mental or physical disorders can. To read more, see How Health Issues Can Make You Inadmissible to the U.S.
The procedure for getting a medical examination is roughly the same whether or not a person is detained by U.S. immigration authorities. A USCIS-approved civil surgeon (this just means a doctor who has applied to USCIS for approval) must examine the applicant and then write down a list of medical findings on a USCIS form called an I-693 Report of Medical Examination and Vaccination Record.
When someone is in immigration detention, the challenge is getting the doctor to the detention center and making sure that the doctor is allowed to enter. Some immigration detention centers have procedures for doing medical examinations, and some ICE offices will arrange the medical examination for the detainees. So, the first thing to do is to speak to two people: the ICE officer who is in charge of the foreign national's case and the responsible person at the detention center.
Ask your family member for the name of the ICE officer in charge of their case. Your family member might be able to contact that person, or you can call the number for the field office and ask to speak with the officer. Find the number for the field office at https://www.ice.gov/contact/field-offices. The ICE officer will have to confirm with the detention center that the foreign national needs a medical examination. In some cases, the officer might be able to arrange one directly. This often depends upon the local practice of the ICE field office and that specific detention center.
However, in many places the officer will tell you to find the doctor first and then call back to set up the appointment. Once you have found the doctor, you should confirm both with the ICE officer and with the detention facility that the date and time have been approved. Otherwise, the doctor might not be allowed to perform the examination.
USCIS provides an online tool that shows all of the doctors close to you who are approved to carry out medical exams. Go to https://my.uscis.gov/findadoctor and type in the zip code of the detention center, and it will show you a list of results with the doctor's name, phone number, and office location. You will probably need to call several doctors and ask if they are willing to go to the detention center and what their fees are. USCIS doesn't set the fees that the doctors can charge, and some might charge extra for traveling somewhere to perform the medical exam.
You should also confirm that the doctor has enough appointment slots open so as to perform the examination and provide the results in time (before your husband's full individual hearing).
Once you have found a doctor, confirm with the ICE officer and the detention center the date and time of the appointment. Make sure that the ICE officer and the detention facility have spoken to each other and are aware of the appointment.
Call the doctor's office after the examination and ask how long it will take to get the results. This is usually fairly quick, depending on the doctor's schedule. The doctor's office will provide you with a sealed envelope and you can ask for a separate copy for your own records.
This is very important: Do not open the sealed envelope. You must take this envelope to court and give it to the government attorney, not to the judge. The government attorney will unseal it in court and determine whether the person has any health-related issues of inadmissibility.
When someone is in an immigration detention facility, the most important thing to you might be getting them out. Make sure this is the wise thing to do, however—immigration court proceedings will move much more quickly if the person is detained, and there could be good reasons you'd want them to see a judge sooner rather than later. Most of the time, however, it’s better to get out of the detention facility and have an immigration judge hear the case at a much later date. An immigration lawyer will be able to help with your decision.
If you would like to get the detainee released, the first thing to do is find out whether ICE has set a bond. The “bond” is similar to “bail” in the U.S. criminal courts. It is an amount of money paid to ICE to guarantee that the detainee will show up for future court dates and obey whatever order the judge ultimately issues. (The money will be returned if the detainee follows through—or forfeited if not.)
Under the law, some people are not eligible for bond, and must remain in the detention facility until an immigration judge decides whether they should be removed (deported). If the ICE deportation officer tells you that the detainee “has no bond,” ask the officer whether that means the amount of the bond has not been determined yet, or whether it means the detainee is not eligible for bond. If you’re told that the detainee is not eligible for bond, you might want to consult with an immigration lawyer to see whether ICE is correct.
If the detainee is eligible for a bond, ICE will tell you the amount it wants you to pay. If you can’t pay that amount, or if you think it’s too high, you or the detainee’s attorney can make a motion for a “bond hearing.” Every detainee is entitled to a bond hearing to determine whether the detainee can be released or how much the bond should be. You don’t have to wait for your first scheduled court date to have the judge decide about bond—you can ask the court to schedule the bond hearing as soon as possible.
At the bond hearing, the immigration judge may either find that the detainee is subject to mandatory detention, or that the detainee can be released on a bond. If the judge finds that the detainee should be released and ICE has set no bond amount yet, the judge will set a bond amount that must be paid before release.
If you are challenging the amount set by ICE, the immigration judge will determine how much the bond will be. The judge will want to know whether the detainee is likely to show up to future immigration court hearings, and whether the detainee would be a danger to the community if released from the detention facility. Be careful about asking the judge to change the bond amount—the judge has the power to lower the amount but also the power to raise it if something bad about the detainee comes up during the bond hearing.
The minimum bond amount is set at $1,500 (I.N.A. § 236(a)(2)(A)), but it can go much higher, up to $20,000 or more. If you are planning to pay this on the detainee’s behalf, you will need to have legal status in the U.S. and bring photo identification. You might also need to arrange for the person’s pickup—not all detention centers will give rides to the nearest bus station or airport.
After the bond hearing, the immigration judge will set a “Master Calendar” or initial hearing date. (Master Calendar means the immigrant and other people are scheduled for court on the same day at the same time.) At the Master Calendar hearing, the immigrant will answer the government’s allegations and request any potential forms of relief. If the person claims some form of relief, the judge will set an “Individual Hearing” date. (Individual Hearing means the immigrant’s case is the only one scheduled for that time on that day.)
The entire removal process can take years or it can take a few months, depending on the kind of relief the detainee has potentially available, whether the court docket is crowded (as it often is), and other factors. That means an immigrant to whom the judge does not allow release on bond can potentially spend a long time in detention—a situation worth avoiding, as described in Living Conditions in Immigration Detention Centers. An attorney might, in such a circumstance, be able to obtain the person’s release by filing what’s called a habeas corpus action in federal court, claiming that such a lengthy detention is unconstitutional.
To get more information on the deportation process, see Noncitizens in Deportation or Removal Proceedings.
]]>Such an amnesty program was offered in the late 1980s, for example. The requirements included that applicants prove they had been living or working in the U.S. for a certain length of time and had good moral character. They first received temporary status, then, after 18 months, could become eligible for green cards, provided they demonstrated that they could speak English.
In recent years, U.S. lawmakers have proposed various bills offering amnesty-like paths to a green card, but couldn't agree on any. In the meantime, some existing laws might allow something similar in rare cases, but not a true, mass amnesty.
A remedy called Non-LPR Cancellation of Removal allows non-citizens who have already been placed in removal (deportation) proceedings to ask the immigration court judge to grant a green card. There are strict eligibility requirements, however, including that:
This remedy cannot be applied for affirmatively, however. One must be in immigration court proceedings first, presumably either after an arrest by U.S. immigration authorities or denial of some other form of immigration application and a referral to immigration court.
There is a program temporarily in place providing for the deferred deportation of certain people who came to the U.S. as children and meet several guidelines (known as Deferred Action for Childhood Arrivals or DACA). This is not a law, but an Executive Order implemented by President Barack Obama. Eligible applicants receive a U.S. work permit.
The Trump Administration attempted to terminate this program, and nearly succeeded. After multiple lawsuits, the situation as of early 2024 is that one cannot submit a new DACA application. Renewals, however, remain an option for people already holding DACA.
For procedural help if and when DACA becomes available again, see Deferred Action for Childhood Arrivals (DACA): Application Process.
The chances of an upcoming amnesty or path to a green card depend on the U.S. Congress, but nothing is on the horizon as of early 2024. If anything, Congress has been focused on making life more difficult for undocumented immigrants, as have some states such as Florida and Texas. (See, for example, Is It Illegal to Transport an Undocumented Immigrant Within the U.S.?.) Keep your eyes on the news for changes.
Beware of the many scammers or fake lawyers who urge immigrants to pay to submit an application during a time when no such application exists. Whenever a new bill comes up in Congress, and its opponents claim (often inappropriately) that it is an amnesty, the scammers tend to seize the opportunity to start collecting money and filling out fake “applications” on immigrants behalf.
If you hear news of an amnesty, be sure to choose a highly qualified immigration attorney to evaluate your situation and help you apply. Or, the attorney might be able to identify another immigration benefit or remedy you could apply for.
]]>The answer is not a simple one, for the reasons laid out below.
U.S. immigration law allows U.S. citizens to petition for their parents (among other family members) to receive green cards; but only after the U.S. citizen child turns 21. Staying in the United States without legal permission for all that time could be difficult and lead to negative immigration consequences.
Leaving the U.S. with the child is the safer option, if one is willing to embark on a long-term plan of having the child return as an adult and then petition for the parents. But since the subject of this article is whether the U.S. citizen child can help the parents avoid deportation, that's a topic that we're assuming isn't as relevant or attractive to readers.
Anyone who entered the U.S. illegally (without inspection) faces further complications in seeking to obtain a green card through family.
When the child turns 21 and petitions for them, they won't be able to stay in the United States to complete the green card application through the process known as "adjustment of status." (Only parents of U.S. citizens whose last entry to the U.S. was a legal one can do that.) Instead, they will need to go to a visa interview at a U.S. consulate.
The consular officer will then inquire as to whether each parent is "inadmissible" on various grounds; in particular, for having spent more than 180 days (six months) in the U.S. illegally while over the age of 18. If so, the person might be barred from the U.S. for either three or ten years. See How soon can the U.S.-born child of an undocumented immigrant petition for the parent? for additional discussion of this issue.
Some people can potentially apply for a waiver of the unlawful presence ground of inadmissibility, but only if they can prove that being denied the visa would cause extreme hardship to their own U.S. citizen or lawful permanent resident parents or spouse or U.S. citizen fiancé. Hardship to U.S. citizen children does NOT count in this context.
After turning 21 and petitioning for the parents, the child will need to be living in the United States and earning enough money to serve as the parents' financial sponsor, in order to ensure that they will be supported at a level that takes them 125% or more (in most cases) above the U.S. Poverty Guidelines. That could be a tall order for a child of that age. But it could be overcome if the family has enough assets to make up the difference.
Another relevant government policy you might have heard of is known as “prosecutorial discretion” (PD) or "deferred action." Because U.S. immigration enforcement authorities (“ICE”) cannot deport everyone, they typically concentrate their efforts on high priority cases such as criminals, and drop the cases of people with many ties to the United States, including family.
By granting "prosecutorial discretion," the authorities wouldn't give the parents of a U.S. citizen a green card or anything like it, but they would promise not to deport them for the present.
Even undocumented parents who are placed into removal proceedings might not be out of luck. If they have been living in the U.S. a long time, it might be possible to apply for what's called Cancellation of Removal (under I.N.A.) § 240A(b)(1)(D)), based on:
Living in the U.S. illegally in hopes of eventually immigrating is something that immigration law discourages, with numerous specific consequences. Your best best is to consult with an experienced immigration attorney.
]]>The Department of Homeland Security (DHS), along with other federal agencies, have called it a "moral and public health imperative" to make the COVID-19 vaccine available to undocumented immigrants and basically anyone living in the United States.
DHS therefore actively encourages non-citizens, no matter their immigration status (or lack thereof), to go ahead and get the COVID-19 vaccine or booster when eligible under local guidelines. In fact, given how many immigrants are essential workers in the United States, it's possible that some undocumented persons will be near the front of the line when it comes to vaccination eligibility.
You will not be asked for any sort of proof of immigration status upon arrival at the COVID-19 vaccine facility.
You will be asked for some personal information, such as your date of birth, occupation, contact information (address and phone number), medical insurance information (if you have any; it's not required for being vaccinated.) and whether you have any high-risk medical conditions.
In some localities, it's even possible to avoid giving an address or phone number when filling out vaccine paperwork, but this is rare, given that advance appointments are the norm, and the providers need a way to reach you. Also, if there's a requirement that you show residency in the state where you will be getting the vaccine (as in Florida, for example), you will definitely have to show a document with your address.
State and local agencies will not ask for a Social Security number or a fee payment, either. In fact, if anyone asks for this, whether for a vaccine or a waiting list, make double sure you're not dealing with a scam operation. Nevertheless, some private providers need a Social Security number to bill the person's insurance; and some will bill the insurance company for a vaccine administration fee.
Medical information in the U.S. is considered private. Doctors and health care workers are simply not allowed to share any of it with U.S. immigration officials.
The U.S. government has made the COVID-19 vaccine available at no cost for everyone, no matter their immigration status and no matter whether they have medical insurance. (Unfortunately, the same cannot be said of COVID-19 testing or treatment, for which there is normally a charge.)
Of course, if you sign up for a vaccine appointment, you will want to confirm with the provider that there will not be a charge, just in case. Again, if you're asked to pay a fee, there's a good chance you're dealing with a disreputable, perhaps even a fake provider.
Both Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have stated they will not engage in enforcement activities at or near vaccine distribution sites or clinics. This is consistent with ICE’s so-called guidelines for protected locations, under which ICE does not carry out enforcement operations at or near hospitals, doctors' offices, health clinics, emergency or urgent care facilities, or other health-care facilities.
If you're reading this and thinking, "But I've read about ICE showing up at plenty of sensitive locations in recent years," it's true that under the Trump Administration, this policy was largely ignored. Under the Biden Harris Administration, however, ICE and CBP have been ordered to return to the priorities that were in place for many years prior, which included focusing resources on high-priority cases such as non-citizen national security threats or serious criminals.
That said, DHS maintains its power to arrest someone at a sensitive location "in the most extraordinary of circumstances." Thus it's possible that if someone was considered a national security threat, they could be picked up even at a health-care or vaccination facility. Nevertheless, the federal government understands the importance of keeping vaccine distribution moving forward, so such actions are unlikely.
If there's a chance you might apply for a U.S. green card in the future (lawful permanent residence), you will then have to show that you're unlikely to need government financial assistance in the future; in other words, be a likely "public charge." Fortunately, using free COVID-19 vaccination services will not be considered in U.S. Citizenship and Immigration Services' (USCIS's) public charge determinations.
The U.S. government provides information and a state-by-state search tool on where to access COVID-19 vaccinations near you. You might also want to contact local nonprofits serving immigrants and refugees to see which sites or access methods they recommend, and the National Resource Center for Refugees, Immigrants, and Migrants (NRC-RIM)'s articles on vaccine matters.
]]>This article explains Washington’s law and procedures for getting a driver’s license if you are an undocumented person.
Getting a standard Washington driver’s license simply means that you are allowed to operate a vehicle within the state of Washington and to carry an identity card proving that fact.
Obtaining a standard Washington driver’s license does NOT give you any sort of legal immigration status in the United States. Washington State has no power to legalize your U.S. immigration status—this is a matter governed solely by federal law. (For an overview, see What's the Easiest Way to Get a U.S. Green Card?.)
That means, for example, that you cannot use your Washington driver's license for federal identification purposes or to vote in U.S. elections. (Also see How Falsely Claiming to Be a U.S. Citizen Can Make You Deportable.) And you will not be eligible for a REAL-ID type license (required for airplane travel starting May 7, 2025) nor for what’s called an “enhanced” Washington drivers’ license, which are accepted at the ‘Ready Lane’ at the border crossing between Washington and Canada.
As an undocumented person wondering whether you are eligible for a Washington driver’s license without legal status or a Social Security Number (SSN), the important issue is whether you can meet the terms set out Chapter 46.20 of the Washington Code, passed in 1993.The statute doesn’t directly talk about issuing licenses to undocumented immigrants—it just doesn’t require you to prove lawful immigration status in the United States in order to get a license.
The main requirement you will have to meet is that you can prove your identity. You can use things like a foreign passport, a consular ID card, a birth certificate, a U.S. Military DD Form 214, and various other documents. See the “Documents for proof of identity” page of the Washington State Department of Licensing website (and be sure to check both "A-List" and “B-List Documents.” You might need to provide several documents in order to satisfy this requirement.
You will also, when you go to the driver’s licensing office to apply, be required to sign a declaration regarding your lack of a Social Security number (SSN).
If you present documents in a language other than English, you may be asked to also submit a translation done by an approved agency.
To apply, you will be expected to fill out an application form, pay fees, and pass a written exam, a vision screening, and a driving test. While study materials are available in a number of languages on the "Driver training and testing" page of the Department of Licensing (DOL) website (under Driver guides), your language options for taking the written test are limited to English and Spanish.
There will be no direct indication of your immigration status on your Washington license. However, it will say "FEDERAL LIMITS APPLY," a reminder that it's not a REAL-ID and doesn't give you the same sorts of access as that or an enhanced ID.
Think twice about applying if you have a record of driving while under the influence of alcohol or drugs (a DUI) or other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers’ license. Consult with an experienced immigration attorney about the risks before applying. While applying for a license does not normally cause the Washington DMV to turn someone’s name over to federal authorities, it probably could not refuse such a request from enforcement officials if you run into trouble with the law.
See the Washington State Department of License's Get your first license or permit page.
]]>If you are an undocumented person, you'll want to read this article explaining California’s rules on getting a driver’s license and outlining the next steps to take in order to apply.
No, getting a California driver’s license does NOT give you any sort of legal status in the United States. Only the U.S. federal government has the power to legalize someone's U.S. immigration status—no individual state can do that.
What getting a California driver’s license does mean is that you are allowed to operate a vehicle within the state of California and to carry an identity card proving that fact. That's all. The main reason the California legislature passed this law was traffic safety. It noted various studies finding that around one in five fatal crashes involved a driver without a proper license; and that millions of California drivers lacked car insurance.
So, for example, you cannot use your California AB60 license for federal identification purposes, to show to an employer, or to vote in U.S. elections.
As an undocumented person seeking a California driver’s license despite having no legal immigration status nor a valid Social Security Number (SSN) will need to meet the terms set out in AB 60. This law requires you to not only meet the same standards as other prospective drivers (for example, to understand the traffic laws and have adequate vision to drive safely), but to:
You will need to supply proof of your identity, most likely from your home country, such as a passport, consular card (matricula consular), or electoral card.
You will also need to submit proof of your residence in California, such as rental or lease agreements showing your and the landlord’s signature, mortgage and home utility bills in your name, school, medical, insurance, bank, and employment records, a letter from your church, temple, mosque, or other place of worship, and so on. If you present documents in a language other than English, you will need to also submit a certified translation or an affidavit of translation into English.
To apply for your license, you can either make an appointment or show up at one of various California drivers license processing centers during open hours.
You will be expected to fill out an application form, pay fees, and pass a written exam and possibly a road sign test, an eye test, and a driving skills test (with you behind the wheel). Study materials are available in a number of languages.
For details, see the AB 60 Driver License page of the California DMV website.
Your California driver’s license will bear the notation "FEDERAL LIMITS APPLY." That means anyone reading might guess that you are not a U.S. citizen—but not necessarily. The same notation will be given to California residents (including U.S. citizens) who simply can't or won't qualify for a so-called "REAL ID" (as will be required starting May 7, 2025 for anyone wanting to board a commercial plane or engage in certain other federally related activities).
The law also forbids discrimination against people holding an AB 60 license. California police do not, by and large, turn over undocumented people to federal immigration enforcement agents.
It remains true, however, that nothing stops federal immigration officials from arresting someone who holds an AB 60 license and cannot otherwise prove legal immigration status—perhaps after encountering them during a home or workplace raid, placing a hold on them after an arrest and imprisonment by law enforcement, or accessing the DMV files because they are searching for that person.
Think twice about applying if you have a record of driving while under the influence of alcohol or drugs (a DUI) or other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers’ license. Consult with an attorney about the risks before applying for your AB 60 license.
If you are an undocumented person living in California who would like a license to drive, see the California Department of Motor Vehicles (DMV) website for more specific guidance. You will also find suggestions regarding what documents to submit on the AB 60 license and AB 60 Checklist pages of the DMV website.
]]>Unfortunately, successfully obtaining a New Mexico DAC card does not confer any sort of lawful immigration status in the United States. It simply means that you are allowed to operate a vehicle within the state of New Mexico and to carry a photo identity card proving that fact. Like all states, New Mexico has no power to legalize your U.S. immigration status—this is a matter governed solely by U.S. federal law. (For an overview, see What's the Easiest Way to Get a U.S. Green Card?.)
That means, for instance, that you cannot use your New Mexico DAC for federal identification purposes or to vote in U.S. elections. And because it’s not considered a “REAL ID” card, you won’t be able to use it to fly on commercial planes or to enter certain federal buildings or facilities starting May 7, 2025.
As an undocumented person looking into whether you are eligible for a New Mexico DAC without having legal status or a Social Security Number (SSN), the first question is whether you can meet the basic terms set out in the New Mexico Statutes, at NM Stat § 66-5-9.
This law requires you to:
You must also satisfy other basic New Mexico requirements related to obtaining a drivers’ license, such as showing that you can drive. In addition, you will need to pay a fee. Unlike in the past however, you will not be fingerprinted.
Note that, if you plan to present documents in a language other than English, you will need to submit a certified translation into English.
Think twice about applying if you have a record of driving while under the influence of alcohol or drugs or other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers’ license. Consult with an experienced immigration attorney about the risks before applying.
While applying for a license does not normally cause the New Mexico MVD to turn someone’s name over to federal authorities, it probably could not refuse such a request if you run into trouble with the law.
If you are approved, your card will be a different color than regular licenses. It will contain the words "Driver's License" as well as "Not Intended For Federal Purposes."
Any local law enforcement or immigration officer looking at it might wonder whether you have no status in the United States. But some U.S. citizens and residents will also be applying for these standard licenses, in situations where they can't qualify for a REAL ID or choose not to go through the effort and expense or doing so. You'll also want to balance the risk of suspicion with that of driving with no license, which could also get you into trouble with the law and thus placed into deportation (removal) proceedings.
The New Mexico MVD website does a great job at advising you what you will need to do and what documents you will have to supply in order to prove the above things, on its Driver’s Licenses/ IDs page.
You might have heard that some cities call themselves "sanctuary cities." The word “sanctuary” conjures images of a zone where no one can enter or make arrests of undocumented ("illegal") immigrants. The truth of what a sanctuary city offers, however, is far more limited and complex.
Broadly speaking, a “sanctuary city” or county provides a safe haven for immigrants by setting limits on how far state or local law enforcement will go to cooperate with, or even do the job of, federal immigration authorities.
What exactly this means, however, varies by city and state. Most often, it has to do with how police and other law enforcement authorities coordinate with ICE when dealing with suspects, criminals, or others with whom they come into contact. It's important to understand that immigration violations are based on federal law, and local police have no direct power to arrest a person simply for being undocumented. So the true meaning of sanctuary often has more to do with local law enforcement refusing to get involved in assisting ICE or doing its job in place of ICE agents than in actually providing protection to immigrants who lack valid legal status.
Being stopped by police for something like a driving violation, or questioned by police for any reason at all, usually involves the police asking for identification, such as a driver’s license. Without proper documentation, an undocumented person in a non-sanctuary city risks being held in custody, even without having committed a crime.
After foreign nationals arrested and detained, their fingerprints are typically run through a national database, which might identify whether they're illegal or undocumented immigrants.
If a match comes up against this federal database, ICE can request that local law enforcement hold the detained non-citizen on what's called an immigration detainer. That's a request by ICE to be notified when a detainee is being released from state or local law enforcement. ICE then takes custody of the person in order to pursue potential deportation.
Assuming the agency complies with the detainer, the noncitizen is held for up to 48 hours. State and local enforcement are required to release the detainee if ICE takes no further action beyond the initial 48 hours. However, it is important to note that it is a voluntary act for agencies to comply with the initial immigration detainer. Thus, there is also no requirement to hold the person beyond the 48 hours.
Undocumented immigrants in a sanctuary city are in most cases shielded from any detention that is primarily based on immigration status. They need not fear that calling the police, or being stopped for something minor like a traffic violation, will trigger cooperation with ICE officials.
Typically, in sanctuary cities, law enforcement officials do not inquire about a person’s immigration status after stopping or detaining the person. Such sanctuary cities also do not cooperate with ICE in conducting interviews with detainees. Access is limited to detainees, often requiring ICE to provide a judicial warrant before conducting an interview.
A survey by the Department of Justice indicated that many sanctuary-city jurisdictions had policies in place to limit cooperation with ICE immigration detainer requests. State and local law enforcement believe this policy promotes safer local communities. Crimes are reported by victims or witnesses rather than silencing them for fear of arrest, detention, or deportation.
However, this policy often comes under criticism whenever an undocumented immigrant offender in a sanctuary city commits a crime or poses a threat to public safety. By limiting the extent to which state and local law enforcement assist ICE officials, sanctuary cities can shield some undocumented immigrants from immigration enforcement. This is, however, a limited form of protection.
It is important to realize that living in a sanctuary city provides no guarantee that you are safe from ICE detention and, ultimately, deportation. ICE is not barred from conducting operations in sanctuary cities. It often monitors the activities of suspected undocumented immigrants.
Sweeps and arrests typically begin early in the morning, before people head to work or begin their day. In sanctuary cities near the U.S. border with Mexico, for example, it is not unusual to find ICE posted at bus stations or at grocery stores and constructions sites or other establishments that typically cater to or employ Hispanic people.
Also, someone who commits a serious crime and is imprisoned is likely to come to the attention of ICE eventually, no matter where they live.
Talk to an experienced attorney for a full analysis of your potential to find a legal way to stay in the United States. And if you are arrested by ICE and placed into immigration court proceedings, getting an attorney's help will be crucial.
]]>Although the I-9 is simple enough that it can usually be completed without outside help, foreign-born employees should take particular care to read the provided instructions, review all the questions, and ensure that their answers are truthful and accurate. The consequences of checking the wrong box on this form if you seek to apply for U.S. lawful permanent residence (a green card) in the future—particularly if you falsely check a box saying that you are a U.S. citizen—can be dire and include removal from the United States.
Here, we'll talk more about how to safely fill out Form I-9.
On one part of Form I-9, employees are supposed to check a box to show why are eligible to work in the United States. The choices include:
There is no “other” box. If you will be accepting a job with a U.S. employer, you will need to choose one of these four possibilities.
In their eagerness to get a job, many foreign-born, often undocumented, persons simply check the box for either “citizen” or “national” on Form I-9. Unfortunately, they might not realize the eventual immigration consequences of doing this. Some of them could, one day, become theoretically eligible to apply for a green card, perhaps because an employer is willing to sponsor them, they’ve married a U.S. citizen, or some other reason.
But to qualify for a green card, you cannot be considered “inadmissible” to the United States. And many things can make someone “inadmissible,” including having made a false claim to U.S. citizenship. (All of the grounds of inadmissibility are outlined in Inadmissibility: When the U.S. Can Keep You Out.)
More specifically, the Immigration and Nationality Act makes inadmissible any alien who “represents” or “has represented” that they are a U.S. citizen for “any purpose or benefit” under any state or federal law. The phrase “any purpose or benefit” is important because it makes this ground of inadmissibility very broad—meaning that it can cover many different situations. For example, if you have lied about being a U.S. citizen to work, vote, or receive public benefits, you are probably inadmissible and ineligible for a green card.
(To learn more about your possibilities for a green card and the process of applying for one when you are already in the U.S., called “adjustment of status,” see Adjustment of Status Procedures and Green Card Qualification.)
In some situations, waivers are available that allow an applicant who has been found inadmissible to receive a green card regardless. It's like a form of legal forgiveness. (If you’d like more information, see When Is a Waiver of Inadmissibility Available for a Green Card Applicant?)
But when it comes to inadmissibility based on a false claim to U.S. citizenship, no waiver is available. However, there are exceptions that could help you, as described next.
There are three situations where the "false claim" ground of inadmissibility might not apply to you in the first place, as follows:
As mentioned above, lying about being a U.S. citizen in order to work is one of the ways in which a person can become inadmissible to the United States. But is just checking one box on a form really enough to count as a lie?
The answer is yes, according to the courts. For example, in a 2012 case called Crocock v. Holder, the immigration judge (IJ) denied Mr. Crocock's green card application (which was based on marriage to a U.S. citizen) because he'd made a false claim to citizenship by checking the “citizen or national” box on Form I-9 and was therefore inadmissible.
Crocock argued (on appeal to the federal court in the Second Circuit) that when he checked the “citizen or national” box, he was actually claiming to be a non-citizen national, and not a U.S. citizen. But the court ruled that the IJ's decision denying the green card was proper: that it is, applicants have the responsibility to present enough evidence to show that they are admissible, and Crocock did not do so.
A federal court in the Eighth Circuit came to a similar decision in 2015, in a case called Etenyi v. Lynch. Here, the applicant claimed that when he was given the I-9 form, the box saying he was a citizen had already been filled in, along with other information, and he simply signed it. The court held that by signing it, he adopted its contents (especially given that he had a college education).
The lesson in this situation: Foreign-born job seekers should always be careful when filling out any official U.S. government forms or immigration paperwork and consult a professional or an experienced attorney if necessary. A simple mistake on Form I-9 or any other government form might be considered a false claim to citizenship that could prevent you from ever getting a green card.
]]>Theoretically yes, but “illegal alien” is not a technical term. It’s popularly used jargon, nowhere found in the U.S. immigration laws. Because of its insulting connotations, however, we at Nolo prefer to use more neutral terms like “undocumented immigrant” or "unauthorized immigrant."
Estimates place the number of undocumented immigrants in the U.S. at around 11 million. Of course, it's an impossible number to know precisely, since it can change rapidly as people come and go, and because this is a population that attempts to stay under the radar.
Some, but not all. Although accurate numbers are hard to come by, it’s clear that a significant number of undocumented immigrants originally came to the U.S. legally from various countries, whether as tourists or using some other nonimmigrant (temporary) visa. Then they failed to leave after the expiration date of their permitted stay arrived.
Overstaying a visa carries its own consequences under U.S. immigration law.
The reason not all undocumented immigrants have been deported is partly because U.S. enforcement resources are insufficient to keep up with the numbers. Detaining and deporting even one person costs many thousands of dollars.
It’s also important to understand that there are gray areas, where someone who might be viewed by some as undocumented has what almost amounts to a right to remain in the United States. For example, asylum seekers being sought for persecution by their own government, who are unable to make direct contact with a refugee agency in their own country, might have no choice for U.S. entry but to come illegally. If stopped at the border, they should be allowed to state their claim and, if their fear is found credible, to see an immigration judge.
Or, an asylum seeker who makes it into the U.S. unseen has one year in which to prepare an application for asylum. Although the person has no actual right to be in the U.S. during that time, a would-be applicant who is caught and placed into removal proceedings can claim asylum at that point, and might very well be approved for asylum (and one year later, be eligible for a green card).
What's more, under a policy called “prosecutorial discretion,” various immigrants, such as students and those with close family members in the U.S., are supposed to be largely left alone by the immigration authorities, so that the authorities can concentrate on immigrants who are criminals or otherwise a risk to U.S. society. Some of these immigrants may actually be granted a sort of limbo status called "deferred action," and in some cases a work permit. See, for example, Deferred Action for Childhood Arrivals (DACA).
Some undocumented immigrants might also have the right to remain in the U.S. based upon a valid claim for Temporary Protected Status (TPS) or another form of immigration relief.
If you hire independent contractors, you're exempt from federal labor laws that require verifying everyone's lawful immigration status. (See Documentation Required to Work in the United States.) As soon as you become an employer however, even if it's just employing a nanny, you do fall under federal provisions making it illegal to hire an undocumented person. See, for example, Risks to Hiring an Undocumented Nanny.
If you are in the U.S. in a status that does not allow you to receive a Social Security number, however—perhaps because you are an undocumented immigrant, a nonimmigrant with a visa that doesn’t allow work, or a spouse of a U.S. citizen, green card holder, or visa holder in the United States who is not allowed to work during your time here—you cannot become part of this system.
Something called an Individual Tax Identification Number (ITIN), however, issued by the Internal Revenue Service (IRS), offers some similar benefits when it comes to showing that compliance your U.S. tax obligations. Let's look closer at how the SSN and ITIN compare.
The main purpose of the nine-digit ITIN is to use in place of an SSN for purposes of filing income taxes or claiming various tax credits (such as the child care credit for a child who is a U.S. citizen or lawful resident).
The ITIN will not, however, fool an employer into thinking an undocumented person or foreign worker without a valid work permit has a right to accept employment in the United States. The employer can easily check a U.S. government database to see whether you have a valid SSN. The ITIN will only allow an employer who is willing to take a chance on (illegally) hiring an undocumented immigrant to withhold taxes on your behalf.
The ITIN also comes in handy for things like opening an interest-bearing bank account, applying for a driver’s license (the laws in some states allow this to people with ITINs), and creating a track record of having lived in the United States (which is occasionally useful for gaining forms of temporary or permanent immigration status, in the nature of an amnesty).
Keep in mind, however, that the ITIN does not indicate or confirm legal status in the United States, nor grant any right to legally work here.
To apply for your own ITIN, you will need to download Form W-7, Application for IRS Individual Taxpayer Identification Number, from the IRS website.
After filling out this form, you will need to attach a completed federal income tax return. The purpose of this is to show that you need the ITIN for tax-filing purposes. You can use either an original or a copy of a tax return you filed in the past (in the latter case, you'll need to write "COPY" at the top.)
Then you will need to gather original documentation or certified copies verifying your identity and foreign status. The only documents the IRS will accept for these purposes are the following, which must be current and show an expiration date and your name and photograph:
You can apply either by mail or in person at a local IRS office. If successful, you will receive a letter containing your number. You will not receive an actual ITIN card; this was a move to avoid confusion with SSNs and their accompanying status to work.
Once you have an ITIN, you will need to use it regularly (namely by entering it onto a 1040 tax return, or being claimed as a dependent on someone else's tax return).
If you don’t use the ITIN for three years in a row, you will need to revalidate it—that is, reapply. For information on how to do that, go to the Individual Taxpayer Identification Number (ITIN) page of the IRS website.
This rumor has a grain of truth in it, but unfortunately there is no simple way to apply for U.S. lawful permanent residence (commonly known as a green card) based on length of time in the United States. We'll discuss the details here.
There is a remedy called “Cancellation of Removal,” formerly called “Suspension of Deportation,” which allows noncitizens who are already in Immigration Court proceedings, fighting against removal (deportation) from the U.S., to request relief if they have been in the U.S. for ten years or longer.
If approved, the Immigration Judge will grant the person a green card. But you have to be in court proceedings first, before applying for this. What’s more, the ten years of living in the U.S. (being “continuously physically present” here) is not the only requirement.
You would also need to show that your removal from the U.S. would cause “exceptional and extremely unusual hardship” to one or more of your close family members—an even higher standard to meet than the "extreme hardship" required for many types of waiver applications. And, they must be U.S. citizens or lawful permanent residents (LPRs). The relatives who qualify include your spouse, parent, or child.
In addition, you need to show that you have “good moral character” and that you have not been convicted of certain crimes or violated certain laws.
Even after all that, you would need to convince the immigration judge that you deserve cancellation of removal according to the judge’s subjective discretion.
As you can see, the standards for this form of relief are high. It’s certainly not something you want to rush out and attempt to get picked up by the immigration authorities in order to apply for, unless you have sat down with a lawyer and determined that you have a strong case and are willing to accept the risks of receiving an order of removal.
Also beware of strategies like submitting another type of application to USCIS, such as for asylum, on the theory that it will probably be denied and thus get you into removal proceedings. In the asylum example, unless you meet the basic eligibility criteria for this remedy (you have a genuine fear of persecution in your home country), you risk being found to have submitted a “frivolous” case just to gain other immigration benefits. This carries legal consequences, namely a permanent ban from any U.S. immigration benefit.
Or let's say you tried submitting an application for a marriage-based green card based on a fake marriage. Such marriage fraud could lead to a finding that you lack good moral character, which would make you ineligible for cancellation of removal and lead to criminal prosecution.
For more information on this defense, see Green Card Through Cancellation of Removal (Non-LPR): Who Qualifies?. And for other ways that someone can qualify for a green card or temporary status in the U.S., see Noncitizens Seeking Visas, Asylum, and Green Cards.
It might also be worth consulting with an experienced immigration attorney, to see whether cancellation of removal is a remedy that would be available to you if you landed in deportation proceedings, or whether there's some other immigration benefit you could apply for.
]]>The good news is that undocumented immigrants have certain rights when arrested by Immigration and Customs Enforcement (ICE). This agency is supposed to follow established procedures to help protect those rights.
There are a number of ways in which an undocumented immigrant can come into ICE custody. For instance, someone might be arrested during a workplace raid. Or, ICE might show up to make an arrest at someone's home.
Keep in mind that you do not have to let in an immigration officer who comes to your home without a warrant. In almost all cases, ICE agents do not bring warrants signed by a judge. However, if you leave your home voluntarily or invite an ICE officer into your home, that officer can arrest you.
ICE agents often stake out the homes of foreign persons using unmarked vehicles (often a white van) in order to learn the schedule of the occupants. ICE officers also use various ruses, such as announcing themselves as police officers in order to encourage people to let them in the house, or claiming to be looking for someone else. These tactics, although extremely misleading, are nonetheless legal in most cases. The best option is not to answer the door unless you are sure of who it is.
There are a few locations where you are unlikely to encounter ICE, referred to as "sensitive locations" according to its enforcement priorities. These include, for example, schools, health care facilities, places of worship, including churches, synagogues, mosques, and temples, funerals and weddings, and public demonstrations, such as rallies or parades.
The initial arrest of an undocumented immigrant might not necessarily be by ICE. You might be taken into custody by another law enforcement agency (“LEA”). State or local police are an example, most likely following a criminal arrest or even a minor traffic violation.
If you are within 100 miles of the U.S. border; sometimes called the "Border Zone," be aware that officers of U.S. Customs and Border Protection (“CBP”) are out looking for undocumented immigrants as well. They can subject you to a warrantless search or investigatory detention, and place you in expedited removal proceedings, which are fast tracks to deportation without a hearing. This article does not focus on expedited removal procedures, which follow a different and much shorter timeline.
After a non-citizen has been arrested, and appears to be undocumented, the LEA might decide to contact ICE. Or, ICE might contact the LEA if it wants to interview someone regarding immigration status, which most often happens when jails input detainee information into databases shared with ICE.
In such cases, ICE will file what's called a "detainer." This means that ICE cannot get to the person immediately, but is asking the police or jail to hold them for an additional amount of time so that ICE can later schedule an interview to determine whether or not to place the person into removal (deportation) proceedings.
If you fear that ICE might try to pick you up, do not volunteer information to the LEA. Any information you volunteer can later be used against you in removal proceedings. However, if you lie about your immigration status, you could face heavy penalties down the line.
Whether or not the LEA complies with the ICE detainer can vary widely depending on the agency, since compliance is voluntary.
Under the law, the maximum amount of additional time that someone can be held on ICE's behalf is 48 hours. If ICE does not take custody of you within those 48 hours, the law says you must be released. However, in practice, arguing for release often simply results in ICE coming to pick you up anyway.
In some instances, law enforcement officers who do not understand or who disregard the law might try to keep you in custody for longer than 48 hours. This is considered unlawful detention, and some remedies exist, including filing a petition with a federal court to challenge your detention or seeking civil damages.
ICE does not always put everyone it arrests into custody. Sometimes it lets people, especially parents with young children, go home. This might involve some type of extended monitoring, such as a mandatory ankle monitor and regularly scheduled check-ins with ICE. ICE will gather information about you and can still try to deport you, but at least you won’t have to spend any time in an immigration jail.
Once an undocumented immigrant is arrested, the ICE deportation officer will make an initial determination as to whether to place the person into removal proceedings and, if so, how to charge the person.
Most often, the charge will be unlawful entry into the U.S., overstaying a nonimmigrant visa, or one of various criminal grounds, if the person was previously arrested and convicted of a crime.
To initiate removal proceedings, the deportation officer will serve you and the immigration court with a Notice to Appear (NTA). If you are detained, ICE is required by law to serve you with an NTA within 72 hours, but some officers neglect to do this, or issue a blank or only partially filled-in NTA instead.
The Notice to Appear lists the immigration-related charges against you. You then have the right to see an immigration judge. The immigration judge does not work for ICE, but rather is part of the U.S. Department of Justice. However, if you already have an outstanding removal order, then you may be deported without an opportunity to go before a judge.
If you do not agree with the charges, you can fight them. Even if the charges are correct, you might still be eligible for relief from removal. See Possible Defenses to Deportation of an Undocumented Alien.
Removal proceedings can be lengthy, sometimes taking years to complete. As long as you do not have a prior order of removal, nor sign an agreement to your deportation or accept voluntary departure, you will not be immediately deported just because you are caught.
After being taken into custody by ICE, you will be placed into a holding facility. Some detention facilities are directly operated by ICE, or their private contractors. Other facilities are subcontracted to local prisons and jails.
When first detained by ICE, you have the right to make one free, local phone call. You probably will not be able to look up a phone number, so make sure you memorize the phone number to your attorney or trusted friend, now. After that first call, you are responsible for the cost of any additional telephone calls, either by establishing an inmate account or by making collect telephone calls.
ICE is not required to detain you locally, so you could find yourself taken to a different state or different part of the U.S. entirely.
Once you are placed into ICE custody, you are not required to sign any documents. If you do not understand what a document says, do not sign it; you could forfeiting your right to an immigration hearing.
You have the right to request an interpreter. You also have the right to contact your home country's consulate. When you call, give your name, alien number (“A-number”), where you were arrested, where you are being held, and the name of your deportation officer. The consulate might be able to refer you to an immigration attorney.
If you are in immigration custody, one of the first things that the deportation officer will do is determine whether or not to allow you pay a bond ("bail") and if so, how much. ICE usually assigns a bond amount by 2:00 pm on the day of someone's arrival. A bond will allow you to be released from custody and return to your home in the U.S. while removal proceedings are pending.
Not all immigrants are eligible for a bond. When determining whether to grant a bond and what amount of bond to grant, the officer will consider two things:
A conviction on your record for certain types of crimes can make you ineligible for a bond. Certain categories of immigrants, such as arriving aliens, are also ineligible for bond.
If the deportation officer refuses to grant you a bond, you have the right to ask an immigration judge to reconsider this decision. Additionally, if the deportation officer grants you a bond but it is too high for your family and friends to pay, you can ask an immigration judge to lower the bond. Because bond hearings are separate from deportation proceedings, you should request a bond hearing as soon as possible, at your first immigration hearing (Master Calendar or scheduling hearing).
An immigrant bond can range anywhere from $1,500 to $25,000, depending on the individual circumstances of the case and the individual immigration judge. (Also see, Can I Pay a Bond to Get a Relative Out of Immigration Detention?)
]]>For foreign nationals who are in the U.S. with no immigration papers, starting a small business, even if it means just selling a few things informally, can seem like a natural way to earn some income. In many cases, they have U.S. family members with a restaurant, grocery, food truck, or service business, and have been helping out there. But what are the legal ramifications if they’d like to branch out on their own?
Welcome to one of the great unresolved questions of immigration law. You’re asking the same question thousands of other undocumented business owners probably have. Many of them went ahead and started businesses anyway, and have, for the most part, encountered few barriers from government regulators, banks and institutional lenders, or even immigration enforcement authorities.
Here’s the deal: U.S. immigration law (which is federal, meaning it’s followed throughout the country), does not say anywhere that an undocumented immigrant is barred from owning a business. The law makes being in the U.S. without permission unlawful by itself, of course; this act is punishable by deportation and various bars on return to the U.S. after removal or other departure.
There have even been cases where an undocumented person was caught in the U.S. and business ownership was actually viewed as a point in their favor when defending against deportation, especially when proof of compliance with tax laws is readily available. However, this might not always be the case, and this should not be taken as saying that starting a business will prevent deportation. Deportation is a very case-specific determination.
The United States doesn't exactly open the door to entrepreneurs who are here illegally. And, relatedly, U.S. law makes it illegal for someone to employ an undocumented worker. This comes from the Immigration Reform and Control Act, or IRCA (found at 8 U.S. Code § 1324a.) Businesses that hire undocumented workers may be sanctioned with fines, asset forfeitures, and in instances of repeated violations, criminal arrest.
These penalties can also be applied to an undocumented person who is a business owner that hires other undocumented people. In that case, the undocumented business owner could face multiple immigration violations. Yet U.S. enforcement authorities have apparently not tried to use this section of IRCA to argue that a business owner is both employer and employee, and therefore violating hiring laws. (Still, it could happen.)
The bottom line is that no lawyer can confidently tell you that it is illegal to start a business if you are an undocumented person in the U.S.; and by the same token, no lawyer can advise you to go ahead and do so. (That shouldn’t stop you from consulting a lawyer to find out the latest word on this matter, however, and whether you might have other options to regularize your immigration status.)
Whatever you do, make sure to abide by other U.S. laws governing small businesses, such as those regarding permits, health codes, labor laws, and so forth. See these articles on Small Business for more information.
]]>If you are an undocumented person living in New York, you'll want to read this article explaining your state's rules on getting a so-called "standard" driver's license and outlining the steps toward applying.
Unfortunately, getting a New York State standard driver's license does NOT give you any sort of legal immigration status in the United States. Only the U.S. federal government has the power to legalize someone's U.S. immigration status—no individual state can do that.
What getting a New York driver's license does mean is that you are allowed to operate a vehicle within the state and to carry an identity card proving that fact. The so-called "standard" license you will receive is your only option; specifically, you will NOT be able to obtain an "Enhanced" or "REAL ID."
That also means you cannot use your New York driver's license for federal identification purposes such as boarding a commercial aircraft, showing to a U.S.-based employer, or voting in U.S. elections.
As an undocumented person seeking a New York driver's license, you will need to not only meet the same standards as other prospective drivers (for example, understand the state's traffic laws and have adequate vision to drive safely), but also be able to prove your:
You will need to document all these things as part of the application process, described next.
Before applying, you will need to prepare for the required road test and written exams by learning to drive a vehicle and studying the rules of the road; and also will need to gather documents proving your eligibility.
Even if you already know how to drive, it's best practice, and to do so legally. For that, you'll need to get a learner's permit from a Department of Motor Vehicles (DMV) office. You might also want to take a state-approved driver education course or pre-licensing course.
Another preparatory step will involve preparing for the written driver's exam, which you can do by reading the New York State Driver's Manual and taking practice tests.
The next step is to gather documents proving all three of the things on the list above: again, including your name, birthday, and residence in New York state. Fortunately, one document can serve more than one function in this situation. Also, you will need to account for whether or not you have a U.S. Social Security Number (SSN).
Possible forms of documentation of your name and identity as well as birth date (in some cases) include:
The list of types of documents proving your residence in New York State is much longer (though some of the above items could potentially satisfy it, too). It includes things like utility bills, Social Security statements, postmarked mail, property deeds or lease agreements, and more. See this handy How to Apply pdf issued by the New York DMV for more ideas.
With regard to a Social Security Number, if you don't have a valid one, you can instead submit a Form NSS-1A (Affidavit Stating No Social Security Number). The form is available in various languages on New York's DMV website.
To submit your application, you can either try walking into a state Department of Motor Vehicles office or make an appointment. You'll also need to take the written test at a DMV office, and a vision exam. After that, you can schedule a road test with the DMV.
Your license will look like any other standard license in the state of New York, but will say “NOT FOR FEDERAL PURPOSES” in the upper right-hand corner.
Obviously, applying for a New York State driver's license gives a local government your name and address. Nevertheless, the language of the Green Light Law prohibits using this type of license as evidence of their immigration status.
If there's suspicion that you committed a crime other than unlawful entry to the United States, however, the federal government could potentially obtain a court order, subpoena, or warrant from a judge to access your information. You should therefore consult with an attorney about applying for a standard license if you have a record of driving while under the influence of alcohol or drugs (a DUI) or any other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers' license.
If you are an undocumented person living in New York State and wish to obtain a standard driver's license, check out the Get a driver license page of the New York DMV's website.
]]>If you are an undocumented person living in Illinois, you'll want to read this article, which explains the state's rules on getting a temporary driver's license and outlines the steps in applying for it.
Unfortunately, getting an Illinois TVDL does NOT give you any sort of legal status in the United States. Only the U.S. federal government has the power to legalize a foreign-born person's U.S. immigration status—no single state can do that.
What getting an Illinois driver's license does mean, however, is that you are allowed to operate a vehicle within the state and to carry a card proving that fact. That's definitely a benefit if you will be operating a car and don't want to risk arrest for doing so without a license (which could be a swift path to removal, otherwise known as deportation from the United States.)
But you cannot use your Illinois license either for federal identification purposes, to show to an employer, or to vote in U.S. elections.
The Illinois driver's license available to undocumented persons expires after three years. You can get another TVDL, but it won't be automatic, nor as easy as for people renewing regular licenses. You will basically have to apply all over again, as if doing so for the first time. (For a comparison of TVDLs and regular licenses, Illinois offers a handy comparison sheet.)
To be eligible for an Illinois driver's license as an undocumented person, you must:
Be prepared to gather a number of documents in order to prove the above.
In order to request a TVDL, you will need to go in person to an Illinois Secretary of State facility. There, you can submit a Verification of Residency Form, which you can download online and fill out in advance. In addition, you'll need to present documents proving your eligibility, as described on the Illinois Secretary of State's list of "acceptable identity documents."
For example, you could present your unexpired foreign passport to prove your foreign citizenship and signature (Part A of their list); your foreign birth certificate to prove your date of birth (though it won't be enough by itself, so you'd need a second item from Part B of the list, such as a certified school transcript or a U.S. visa); a declaration that you can't get an SSN (to satisfy Part C of the list); and a rental agreement or utility bill showing where you've lived (for Part D of the list).
You will also have your photo taken while you're at the licensing office.
If your application is successful, a TVDL will be mailed to you within a few weeks.
Your license will look similar to a regular Illinois driver's license, but with some important differences. For one, it will say "TVDL" at the top, as well as, "Not valid for identification." Strange as it might seem to have a photo identity card that says it's not valid for identification, this refers mostly to the fact that it's not considered valid for federal identification purposes, for instance if you were to travel on a commercial flight.
You might understandably be concerned that anyone looking at your TVDL might guess that you are not a U.S. citizen, and don't have any lawful immigration status at all. One thing in your favor, however, is that non-citizens who are lawfully in the U.S. on a visa would also request this type of visa.
The Illinois Secretary of State website contains detailed information on eligibility and the application process for a TVDL.
]]>For the law on this topic, go to I.N.A. § 101(a)(27)(J); 8 C.F.R. § 204.11.
Because the application process must normally be started while the child is under age 21 and unmarried, it is important to identify children and youth who might qualify for this status before they are too old to benefit. Teachers, counselors, social workers, and youth probation officers should become aware of this possibility.
Here, we'll discuss:
Some advantages to obtaining Special Immigrant Juvenile status include that the child does not need to have entered the U.S. legally and does not need to show any means of financial support—both of which are barriers to most other types of green card approvals, because they make the applicant "inadmissible." (For more information about this issue, see Inadmissibility: When the U.S. Can Keep You Out.) In fact, most other grounds of inadmissibility do not matter for Special Immigrant Juveniles.
Also, Special Immigrant Juveniles were one of only a few types of immigrants who are eligible to have the fee for a green card application (USCIS Form I-485) waived upon request; and after April 1, 2024, won't even have to make the waiver request. (They'll be automatically exempt.)
A disadvantage of the SIJS green card option is that a child who is granted Special Immigrant Juvenile Status is never legally permitted to file any immigrant petition for either parent. Thus, even if only one parent was abusive or neglectful, the child will still never be able to petition for the non-abusive parent to get a green card. For purposes of immigration, it is as if the child were an orphan.
And there are some aspects of the process that can make prospective guardians worry, particularly if they themselves undocumented. (Not uncommon if the child is being cared for by more distant family in the United States.) The prospective guardians might be required to undergo background checks (including fingerprinting) and a home study, and pay various fees. The family court judge isn't in charge of enforcing U.S. immigration laws, but if, for example, the prospective guardian has a prior removal (deportation) order on file, the judge will be naturally concerned that the guardian might be at risk of leaving the United States.
To meet the basic qualification for Special Immigrant Juvenile Status:
The above decisions must be handled by a judge in a court in the state where the child lives, not by U.S. immigration officials. Which kinds of courts can make such a determination, and what the legal standard is for abuse, neglect, or abandonment is a question of state law and differs from state to state. Commonly, juvenile or youth offender courts, family courts, and probate courts can issue such orders.
However, the title of such courts and their powers vary from state to state. This is one reason why it is an excellent idea to find a lawyer to assist in this process.
Under typical state laws, abuse is said to involve physical injury that threatens life or health. It doesn't mean spanking or other corporal punishment.
Neglect has more to do with providing a minimum level of care or supervision despite having the financial means to do so. (Poverty by itself is not neglect.) It can involve using alcohol or drugs in the child's presence, leaving the child alone, or engaging in excessive corporal punishment.
Abandonment means when parents intentionally give up parental rights, for example by having minimal or no meaningful personal contact, refusing to provide financial support, and so on. Depending on the specifics of state law, it might still be alleged even after the child turns 18 and is no longer considered a minor.
This standard will also be determined by state law, but typically involves looking at the big picture of how the child's life would be impacted if refused U.S. permanent residence. Consider what would happen if the child were returned to the country of origin, in terms of safety, access to education, access to medical care, the presence of family and other support systems, and any history of traumatic experiences or personal dangers there.
Also consider how staying in the United States could benefit the child, in terms of educational and career goals, a stable family life once the custody or guardianship is established, and so on.
Only after obtaining documentation of the above can one proceed to the immigration portion of the application process for Special Immigrant Juvenile Status, by seeking I-360 petition approval and eventually a green card (adjustment of status) from U.S. Citizenship and Immigration Services (USCIS).
SIJS is a complex portion of U.S. immigration law, with overlays with other types of law. It's well worth consulting an experienced attorney for a full analysis of your case's potential to win, and potentially assistance with the application process. A child who is placed into removal proceedings before an immigration judge should absolutely hire an attorney.
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