What To Do If You Are Out of Status?

Recent changes in many laws have profoundly affected the lives of millions of undocumented aliens living in the United States. The most recent one, is a change in regulations for revalidation or changes to driver licenses in the state of Florida, for non-U.S. citizens. Undocumented aliens can no longer revalidate or make any changes to their driver licenses.

So, what are undocumented aliens to do? Traveling outside the U.S. and reentering to regain status could be disastrous, as I.N.S. is now inspecting arriving foreign visitors very carefully. Should you have exceeded your previous authorized stay by more than 180 days, I.N.S. could bar you from returning to the U.S. or becoming a permanent resident in the future for many years.

The only avenue to legalization for undocumented aliens who have overstayed their authorized stay for over 180 days is to file for permanent residence. Most aliens need a qualified family member or an employer to file a petition for them. Also, most petitions filed on behalf of undocumented aliens will later depend on qualification under paragraph 245(i) of the Immigration regulations to be completed, as explained later.

Which family members can file petitions for permanent residence?

U.S. Citizens:
• for spouses, single children under 21 and parents -under the Immediate Relative (IR) category. No waiting period, no need to use parag.245(i).
• for single step-children under 21 - same as above, is parents married before child's 18th birthday. No waiting period as well.
• For single adopted children under 21 - if adoption is completed before the 16th birthday - also no waiting period, still same IR category.
• for single children over 21 - under the Family 1st category. There is currently a 3-year waiting list for the adjustment of status to be filed.
• For married children and their families - Family 3rd classification. Approximately 5 years' wait currently.
• For brothers and sisters - under the Family 4th class - over 10 years of waiting period currently.

Permanent Residents:
• for spouses and single children under 21 - under Family 2A , currently an approximate wait of 5 years to file for adjustment
• for single children over 21 - under Family 2B - currently an 8-year waiting period.
• Cannot file for parents, married children or brothers and sisters.

How can an employer file a petition for permanent residence on your behalf?
By offering you a job. You don't have to be already working for the employer, you just need to be qualified for the position. The job offer is submitted to the Department of Labor, reviewed and certified. Then the company can file for permanent residence on your behalf with the Immigration Service. After the petition for permanent residence is approved, you and your qualifying family members can file for adjustment of your status to permanent residents. For persons out-of-status for over 180 days, this last petition can only be finalized using paragraph 245(i) of the law, which requires the alien to pay a special fee to adjust status.

Paragraph 245(i)

This paragraph of law allows certain unlawful aliens who are the beneficiaries of approved permanent residence petitions, to adjust status to permanent residents without leaving the U.S. and having to wait many years abroad before being allowed to return.

The right to use paragraph 245(i) of the law was suspended April 30, 2001. Congress has tried to revalidate paragraph 245(i) twice since then, unsuccessfully. We are hoping they will be successful soon.
Many aliens who did not file petitions under the protection of paragraph 245(i) before April 30th, 2001 can still qualify to use paragraph 245(i) even when starting petitions now. Protection under 245(i) is extended to spouses, ex-spouses, children (under or over 21). So, if for example, your ex-wife filed a petition for permanent residence under the protection of paragraph 245(i) but you divorced before you had a chance to become a permanent resident, the right to use 245(i) can be transferred to a new petition, either family or employment-based. There are many other transference possibilities, such as previous, non-completed petitions by employers or family members.

And always seek proper legal advice. A qualified attorney will be able to review your petition, your qualifications, and explain in detail each step to be taken.

by Robert A. Kravitz, Esq.

Law Offices of Kravitz & Guerra, P.A.

(305) 372-0222

Letters to Attorney@Kravitzlaw.com