Legal Options for Undocumented Immigrants

Featuring Virginia Immigration Attorney Sam McTyre

Video Transcript:

Sam McTyre:

If the authorities find out, they will be either asked to leave or removed from the United States.

Rob Rosenthal:

What are the options for an undocumented immigrant who wants to stay in the United States? Well, we're going to find out right now, because that's what we're going to ask the lawyer on this episode.

Hi again, everybody. I'm Rob Rosenthal with askthelawyers.com, and my guest is Virginia immigration attorney, Sam McTyre. I want to tell you before we get into the questions, if you want to ask questions about your specific situation, just head over to askthelawyers.com, click the button at the top of the screen that says “Ask a Lawyer”, and it'll walk you through the process right there.

Sam, thank you for making some time to answer our questions today. I appreciate it.

Sam McTyre:

Oh, you're welcome. I'm glad to be here.

Rob Rosenthal:

So let's just talk about some of the more common situations that you've seen in your experience, where someone might find themselves in this country undocumented. What are some of the situations there?

Sam McTyre:

Well, typically, there are two categories of people who become undocumented; the first category is by far the largest, and that is someone who entered the country legally, had some type of non-immigrant visa, which would be a student, a tourist, a temporary worker, and overstayed the time they were allotted for with their temporary visa to the United States. The other category, which is a close second in terms of the numbers, is, of course, the people who cross the border and enter the United States without inspection. That's usually the group that you hear the most about because it comes out in the news so much, but either one of those groups are in a situation where their options are very limited in terms of staying in the United States. They are here illegally, and if the authorities find out they will be either asked to leave or removed from the United States.

Rob Rosenthal:

So let's talk about what those limited options are. If somebody's an undocumented immigrant and they want to be able to stay here, what are those options?

Sam McTyre:

Well, a lot of it has to do with their circumstances. The person who has remained in the United States or entered illegally can become a permanent resident if they, for instance, through a relative petition are married to a US citizen or a lawful permanent resident that person can petition for them. There are some pitfalls there and some difficulties that they're going to encounter. If they entered with a valid visa—in other words, they made a legal entry in the United States—they can actually adjust their status if they're in the United States, and they have an immigrant visa immediately available to them. Such a visa would be the petition of a US citizen, husband or wife who petitions for them to become a permanent resident. They can adjust their status without having to leave the United States.

All other categories, basically, are going to require that you return to your home country and process your immigrant fees through the Consulate in your country of origin.

Rob Rosenthal:

What little I know about dealing with the government, I would think these processes are complicated and difficult, and I would imagine having someone like yourself who is familiar with all those processes is very important, right?

Sam McTyre:

Well, they certainly can be cumbersome. There are laws and regulations that change every once in a while, and they've been accumulating—especially the regulations—have been accumulating over many, many years. The immigration law that is our basic claw right now goes back to 1965. So a lot of the basic tenets of immigration law go back that far. And they have, of course, changed some of the law and definitely some of the procedures that are codified in the immigration regulations.

Rob Rosenthal:

Not the sort of thing someone should try to do themselves—especially if they're not from this country, obviously, there's going to be added difficulty. So it's the sort of thing they need someone to help guide them through.

Sam McTyre:

Yes, I would think so.

Rob Rosenthal:

What is a waiver in immigration law? And how does that work? Who might qualify for that?

Sam McTyre:

A waiver relates to a number of factors of inadmissibility; I don't want to get very technical here, but there are reasons or factors that can keep you from entering the United States legally or becoming a permanent resident. These include things like being a terrorist, being a diplomat who has been expelled, committing some type of fraud like immigration fraud, or having been removed and having been here illegally. The latter one is [probably the one that causes the most problems, because in most cases people have been here at least a year illegally, in which case they do not have the facility to return to their country and get their immigrant visa that somebody has petitioned for them and return immediately.There is what we call the three and the ten-year bars; if you've been here illegally for more than three months, you can't return to the United States for three years. If you’ve been here unlawfully for more than a year, you can't return to the United States for ten years.

So the most used waiver is the waiver of the three and the ten-year bars; that allows you to say, “I have a family member who will be terribly affected by my having to return to my country and stay there for ten years.” Now the effect has to be a little bit more than what you would normally think if you're going to be separated for ten years; that's going to cause you some extreme hardship in terms of trying to go on with your life. You're going to have two separate families to maintain. So financially alone, it's going to be difficult. Typically, the waiver that you request is on behalf of a US citizen or a lawful permanent resident in the United States, the person that you live with who will be affected by the fact that you're going to have to wait ten years before you can get your visa. What will happen is—if they grant that waiver—they will allow you to go back to your country, get the visa, and come back to the United States without having to wait three years or ten years.

Rob Rosenthal:

These processes for the waivers or petitions, that sort of thing. Is it generally a long process, Sam? Or does this kind of thing generally get expedited?. How does that work?

Sam McTyre:

Well, specifically with regard to the three and ten year bars, the law has tried to streamline this to the point where while you're processing your immigrant visa with the Consulate, you can also be processing the waiver. And of course the waiver is processed through the US Citizenship and Immigration Service, the USCIS. They will typically turn that around in a matter of months, and you will have the waiver before you actually get called up for an interview with the Consulate. So in that respect, it’s helped a lot of families out, and it's allowed a lot of people to just seamlessly petition for an immigrant visa, go to their Consulate, and reset their waiver of approval and come back to the United States in a matter of weeks. So yeah, it has helped.

Rob Rosenthal:

What about employment-based immigrants? Are they able to legally change their status? And how difficult is that process?

Sam McTyre:

Most employment-based immigrant visas are part of a process where the person has been here before working temporarily on a temporary visa. For instance, the tech industry does this a lot, offering professional visas to people that they need with technical abilities—professional level, technical abilities—and those people eventually will ask the employer to petition for them for an immigrant visa. That whole process is done as an adjustment of status; they don't have to leave the country if they maintain their status here in the United States.

The more unfortunate cases are the ones where somebody is already here illegally and is trying to have an employer petition for them. For all practical purposes, the only people that will qualify for an adjustment of status are those who began the process of permanent residence way back in 2001. If they filed for an immigrant visa before April 30th of 2001, they will be allowed to finish that process even if it's a different employer or a different petitioner, and become a permanent resident by adjusting their status. Any other way would be very difficult for them to get the visa in their home country, because there is really no waiver to speak of. That would have to be a family petition.

Rob Rosenthal:

It sounds very complicated. Very interesting. Lots of great information, Sam. I appreciate you making some time to answer our questions.

Sam McTyre:

You're welcome.

Rob Rosenthal:

I look forward to future conversations.

That's going to do it for this episode of Ask the Lawyer. My guest has been Virginia attorney Sam McTyre. I remind you, if you have questions about your specific situation, head over to askthelawyers.com, click the button at the top of the screen that says “Ask a Lawyer”, and you can walk through the process right there.

Thanks for watching, I'm Rob Rosenthal with AskTheLawyers™.

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