Life after entry without inspection (Part 3)

By Alberto Gonzales,

Immigration Attorney

(708) 916-3077

Note: This article is not intended to create an attorney-client relationship or to constitute legal advice. This article provides a general overview only and should not be relied upon in lieu of consultation with an immigration attorney.

On a dark street corner, a man pointed a gun at Jose and demanded his wallet. After Jose handed it over, the robber struck Jose’s face with the gun causing permanent disfigurement. Ten years ago, Jose, as an undocumented immigrant, crossed the border into the U.S. without presenting himself to a U.S. immigration officer. This entry is called “entry without inspection” (EWI). Is there any immigration relief available for Jose?

Adjustment of status (AOS) is the process in which one applies for U.S. lawful permanent residence (“green card”) without leaving the U.S. The alternative to AOS is to apply for an immigrant visa before a U.S. consulate abroad. However, if such person has been unlawfully present in the U.S. for over 180 days, departing the U.S. may cause that person to be barred from returning for many years. Thus, AOS is often the preferred way of obtaining green card status.

U Visa

According to Section 245(a) of the Immigration and Nationality Act (INA), only a person who has been “inspected and admitted” or “paroled” or a Violence Against Women Act approved self-petitioner may apply for AOS. EWI is not considered being inspected and admitted or paroled. Fortunately, undocumented immigrants, like Jose, who are victims of certain crimes may be eligible to receive “U” Visas and eventually apply for AOS.

According to INA Section 101(a)(15)(U), to qualify for a U Visa, the applicant must: 1) have “suffered substantial physical or mental abuse” from being a victim of a qualifying criminal activity; 2) possess “information concerning [the qualifying] criminal activity”; 3) have been “helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the criminal activity; and 4) have been a victim of a qualifying criminal activity which violated U.S. federal, state, or local criminal law, or occurred in U.S. territory. Thus, a U Visa applicant must also submit a “certification of helpfulness” from a law enforcement agency, prosecutor, or judge.

To qualify for a U Visa, the applicant must have been a victim of “rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting …; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.”

Approved U Visa applicants receive work authorization and relief from removal/deportation. In addition, certain family members of qualifying victims may also be eligible to receive derivative U Visa status. Qualifying victims who entered as EWIs may also obtain waivers to receive the U Visa. Finally, a U Visa holder who has been in the U.S. for at least three years may be eligible for AOS. (Source consulted: Kurzban, Ira J., Kurzban’s Immigration Law Sourcebook 1152 et seq. (15th ed. 2016).



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