While a lot of immigration practice focuses on people who are inside the USA with valid status or outside of the US being sponsored for entry, a portion of the practice deals with people who may be present in the United States without status. These people can be without status because the status expired after they were admitted, or because they entered the country without a visa and without being “inspected or paroled.” While these immigrants are inside the country, they still have certain rights. These individuals can also seek to obtain status depending on their immigration or living history inside the USA. In this article, we will be discussing the following:
- Who is an undocumented immigrant?
- Is the term illegal immigrant or illegal alien found in the federal statute?
- What does the word “undocumented” mean?
- Can undocumented immigrants become citizens?
- Can undocumented immigrants get a green card?
- What can I do to know more?
Immigration law is a very difficult area of practice that is constantly changing. If you have any questions about your path to citizenship, we recommend speaking with an experienced immigration attorney to make sure that your petition for status does not get rejected or denied. Additionally, with President Biden’s US Citizenship Act of 2021, of which you can learn more about here, many of the information we will be discussing could be changed. However, this act has been introduced into the house as of Feb. 18, 2021. You can follow the bill’s trajectory here.
Who is an undocumented immigrant?
An undocumented immigrant is a person who is inside the United States without valid status or work authorization. They could have been here for many years, or they could have just entered into the country. However, what is important to note is that it does not matter whether the person became undocumented due to their expiration of status or whether they entered the country without being inspected or paroled.
The term Inspected means that the person has been approved for entry into the USA by a border agent, consular officer, or USCIS itself. Meanwhile, “parole” is when a border or entry official allows a person to enter the USA without proper documentation. Parole is a more narrow way of entering the country, since, once the reason for paroling the person is gone, the parolee needs to leave the US and their entry sometimes do not qualify as an admission for purposes of adjustment of status.
Is the term illegal immigrant or illegal alien found in the federal statute?
The term illegal immigrant or illegal alien is technically not defined by a federal statute. You can learn more about that here.
We focus on the federal statute because only the Federal government has the right to set immigration policy. Arizona v. United States, 567 U.S. 387 (2012). States are preempted from creating their own laws that regulate immigration. Id. This has been a power that can only be exercised by the US government since the very beginning. If you would like to know more about why the federal government has exclusive rights over immigration, please feel free to read up on the Passenger Cases of the 1840’s.
Coming back to the definition of illegal alien, there are some statutes that state that “Illegal Aliens” do not have certain rights, but they are few and they do not define what an illegal alien is. The confusion surrounding the term most likely stems from the grounds of inadmissibility. Under the grounds of inadmissibility, 8 USC 1182, a person cannot receive a visa or become a resident if they are present without admission or parole. This is called the illegal entrant and immigration violators ground of inadmissibility. There are exceptions to this ground of inadmissibility, such as VAWA self-petitioners, U visa and T visa applicants, asylum seekers, among others.
As a result, illegal alien is a very narrow term that does not necessarily exist under federal law. For these reasons, this blog will refer to people without status as undocumented rather than illegal.
What does the word “undocumented” mean?
The word undocumented, as the word illegal alien, does not have a definition under the Immigration and Nationality Act. However, it is taken to mean that the person or group of people being discussed do not have valid work authorization in the USA and no status. This would encompass both people who entered outside a border entry zone, asylum applicants waiting for their waiting for their work permits who entered the country without documents, and people who allowed their immigration status to expire (knowingly and unknowingly).
Can undocumented immigrants become citizens?
Generally no, undocumented immigrants cannot become US Citizens by themselves. However, paths to citizenship exist for them. These paths can be either through family relationship (i.e. marriage, consanguineous relationships, or birth), or through humanitarian routes, such as the U visa for survivors of serious crimes, the T visa for survivors of human trafficking, the Violence Against Women Act if they were abused by a qualifying US Citizen or LPR (please see our article on VAWA here.(unpublished right now)). If you have questions about your own path to status, please do not hesitate to call us to make an appointment to speak with an immigration attorney. Depending on the type of documentation the person is seeking in their pathway to citizenship, the immigrant could either adjust status inside the Country or they would need to go through the consular process. Our recommendation would be to speak with an attorney to make sure your filing is correct and to make it easier on you.
Can undocumented immigrants get a green card?
Just as we were discussing above, an undocumented immigrant cannot by themselves have a green card. However, based on qualifying family relationships or through humanitarian routes, an undocumented immigrant could have access to a green card. They can begin the process to obtain status this way. Depending on the type of documentation the person is seeking in their pathway to citizenship, the immigrant could either adjust status inside the Country or they would need to go through the consular process. Our recommendation would be to speak with an attorney to make sure your filing is correct and to make it easier on you.
One big caveat is that if US Citizenship Act of 2021 passes Congress and it is signed into law, there will be a provision for certain undocumented workers to obtain status based on their previous work as agricultural workers. This section of the bill is called the Agricultural Workers Adjustment Act. Another huge portion of the US Citizenship Act of 2021 would be the real of 8 USC 1182(a)(9), the 3, 10, and permanent bars to reentry based on illegal stay inside the country. This will help make the adjustment process so much easier for undocumented and mixed status families. If you think this law should pass, please contact your congressperson and your senator to let them know that you and your family support this law. You can find who your congress representative is here. You can find more about your senator here.
What can I do to learn more?
If you have questions about whether you qualify for any immigration relief, please do not hesitate to reach call O’Flaherty Law at 630-324-6666 to speak with one of our experienced immigration attorneys.
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