Can illegal immigrant adjust status within the U.S.?


Q: I came to the USA from Ecuador at age 14 and my visa expired about a year after. I have overstayed within the U.S. for 11 years. I am married and have a child who is a US citizen. My husband came back and forward between U.S. and Mexico with a visitor’s visa. His visa expired in 2009 and he has overstayed for 2 years. I have a sister who will become a US citizen within six months and is willing to sponsor us. My husband’s employer is willing to sponsor us, too. My question is do we have to leave the country? Can we stay after we file the applications? How long will it take for us to get green cards, social security cards, or at least visas? Can we be sponsored by both of them or just one of them, and what should be the next step to take? Thank you!

A: Unless you or your husband is protected by 245i, your case will be very difficult. Let me explain:

Generally, an alien cannot adjust status in the US unless he or she entered the US legally and maintained the legal status. If you are an immediate relative of a US citizen, the maintenance of legal status does not apply to you but you still must enter the US legally. To be protected by 245i (a special immigration law), you must be in the US on December 21, 2000 and an immigrant visa petition or labor certification was filed for you on or before April 30, 2001. If you do not meet these two conditions, you are not protected by 245i and you cannot adjust status either through your sister’s visa petition or through your husband’s employer. Please also note it will take more than 10 years for your sister’s visa petition for you to become current. You still do not have any legal status after your sister applies visa for you.

Worse yet, you must leave the US to apply for immigrant visa in your home country. But once you leave the US, you are barred from coming back for 10 years for unlawful presence over one year. This applies to your husband, too.

You will need to consult with an immigration lawyer for your options.