If Someone Entered The US Without Inspection, Can This Person Marry A US Citizen To Lawfully Stay In The US?

Most likely not. But the undocumented individual has a long shot to stay in the US in rather unique circumstances. You should speak to an immigration lawyer if you are personally aware of these circumstances.

Imagine a person who entered the United States, then eventually married a US Citizen or Lawful Permanent Resident green card holder. They raise children together, earn paychecks, and live like a normal family for years.

Yet even if the couple has multiple children, stays out of trouble, behaves well, and lives in the US for a long time, the unlawfully present spouse will likely be deported if apprehended.

In this situation, the legal test to determine whether a person qualifies to stay in the US will likely be the “cancellation of removal and adjustment of status for non-LPRs” test found in INA §240A(b). The key element is to show that removal would result in exceptional and extremely unusual hardship to the United States citizen or Law Permanent Resident spouse, parent, or child.

The hardship must be “substantially beyond” the hardships ordinarily associated with a person’s ordered departure from the United States. See Matter of Monreal, 23 I&N Dec. 56, 63 (BIA 2001). Mere ordinary hardship includes hardship the children suffer without a biological parent, hardship two spouses suffer when they are separated, and hardship from a lack of job opportunity country designated for removal. This law is tough, so these reasons alone will highly likely deport the undocumented person.

The hardship must be “substantially beyond” ordinary hardship, so disabilities, relatives in the US and in the home country, number of years in US, employment and financial conditions, and community ties all play major roles to build a winning case. For example, if the undocumented person is the caretaker for a disabled US citizen spouse, then this case has a chance.

In addition to exceptional and extremely unusual hardship, one must also prove that the individual has (1) been physically present in the US for at least 10 years, (2) has been a person of good moral character for 10 years, (3) has not been convicted of an offense under INA §212(a) [crimes involving moral turpitude], §237(a)(2) [crimes for a sentence of one year or more may be imposed, two or more crimes involving moral turpitude, aggravated felony, and some others], and (4) a favorable discretion is warranted.

In a nutshell, cancellation of removal for a non-lawful permanent resident cases are not easy. Under current law, to marry a person who entered the United States unlawfully is a major risk to both spouses and their future family.

Immigration Rights | Non-legal Immigration Services Prohibited

In Washington State, Governor Gregoire signed SSB 5023 "Addressing non-legal immigration services." As a lawyer that practices immigration law, I support this bill. I believe this bill will improve the quality of immigration legal services. 

This legislation forbids non-lawyers from giving legal advice in several immigration matters. Many lawyers came together to provide examples of harm to clients.

On Section 3, RCW 19.154.060 is amended to include law that states that non-lawyers cannot charge money for practicing immigration law.

Specifically, non-lawyers CANNOT:

-- determine if a person’s status is legal or illegal,

-- select or suggest an appropriate visa program,

-- interpret the meaning or intent of a government agency in an immigration matter,

-- charge a fee for referring another to an immigration lawyer,

-- draft or complete legal documents affecting legal rights of another in an immigration matter,

-- imply that the person possesses professional legal skills in the area of immigration law.

Note that a lawyer may supervise a non-lawyer to perform immigration law activities.

This bill is directed against “notarios” and other people who misrepresent themselves to prospective immigration clients.

Immigration Rights | Congressmen from Washington State

On April 7, 2011 I had the pleasure to visit Washington DC, a city full of picturesque monuments, diverse faces, and people in suits.

I feel proud to be American. To be fair, every country has its positive and negative qualities, much like a real person. But America, at its finest, is a living and breathing beacon of freedom. We elect our representatives to make the laws, elect the President to enforce the laws, and we appoint Judges to interpret the laws.

I traveled with seven other AILA attorneys who practice immigration law to speak with Washington State Congressmen about immigration policy. This was part of a nation-wide effort to inform our representatives who make our immigration laws.

We met with staff persons from almost every Congress person, except McMorris Rodgers, Republican from the 5th District centered around Spokane, and Jaime Beutler, Republican from the 3rd around Vancouver, Washington.

The feeling from each individual Democrat staff was that immigration is an important issue that affects the economy, security, and our values, but it's not high on the "to do" list. Comprehensive immigration reform will not likely take place until after the 2012 elections.

We cited highly specific examples to describe to each individual Congress representative about how our immigration laws need refinement. For example - just one of many - the amount of business visas have not changed for decades. The US is not able to grant enough visas to highly qualified immigrants that create jobs, which harms the economy. The lack of availability for visas for family members is just a dire. In some cases a family member must wait 20 years before being able to lawfully immigrate into the US to be with a relative.

In all, immigration issues are not going away. The sooner the government is able to address immigration policy wisely, the better.

Immigration Rights | Citizenship Day Is A Worthy Event

To address the value of Citizenship Day, here is a letter to anyone with state budget-making authority:

I am a lawyer who has volunteered for Citizenship Day events in Pasco, Tacoma, Aberdeen, and Vancouver, Washington. These day-long events naturalize low-income immigrants.

Many voices support these events because they encourage lawful permanent residents to become US citizens, which is essentially encouraging responsible citizenship.

For the purposes of this response, I voice my support for those who work on behalf of the immigrants. Citizenship Day is not just about rewarding green card holders, but it also rewards the attorneys, paralegals, students, community groups, and New Americans and OneAmerica participants.

Volunteers benefit from effective training workshops for attorney, paralegal, and intake participants. Veteran attorneys mentor the newer attorneys and paralegals, which help newer volunteers grow into more responsible and knowledgeable resources.


The idea in America is that the more educated you are, the easier it is. Yet, because of a slumping economy, many lawyers and other individuals in the legal world are currently struggling to make a living. I am a chair for the state American Immigration Lawyers Association and I meet numerous talented, driven, and compassionate new attorneys who are reaching out to populations like immigrants that are in great need, and are very thirsty to secure jobs and experience.

Citizenship Day events benefit the professionals and workers who assist immigrants, not just the immigrants themselves. The events attract a diverse scope of generous people who donate their valuable time because they care about the future of the United States. Please keep this program alive and do not cut New Americans or OneAmerica's budget.

Immigration Rights | Change of Status

A person temporarily present in the United States may change status from one temporary (nonimmigrant) status to another temporary status. For example, a foreign student who acquires a job in the United States may, upon graduation, change status from a student visa to a temporary work visa.

A change of status is a different idea than “adjustment of status.” An adjustment of status describes the process used by a foreign national who is physically present in the United States to become a lawful permanent resident. In contrast, change of status deals with getting another type of temporary – not permanent – visa.

If you are eligible for change of nonimmigrant status, you may change the status at a US consulate abroad or in the United States.

The key is that you must properly file an application to change status before the authorized stay expires. If you timely file your change of status, then you are permitted to remain in the United States while your application is pending, even the application is decided only after your stay. If you fail to file on time, then you have some wiggle room for an exception, but it is not easy.

If you are admitted to the United States even though you were unlawfully present during a previous stay, then you are not eligible for change of status.

There are some tricky exceptions for J visa holders, K nonimmigrant fiancés, and if you are admitted as a nonimmigrant without a visa under the visa waiver program. 

If there is any complications involved with your status, see an immigration lawyer.

Immigration Rights | Access to Justice Concerns

Many immigrants are financially well-off with white-collar jobs or advanced degrees. They come from relatively prosperous families or they earn enough money in the US to afford immigration legal counsel. Yet many immigrants are not so lucky. They are poor and work on jobs most Americans will not take. 

Many immigrants do not fully grasp American language, culture, and laws. Immigration law, which is as complicated as tax law, is hard for native Americans – much less immigrants – to comprehend.

The unfortunate result is that many immigrants rely on bad information, generally from people who may not have immigration law expertise. Mexicans, for example, are accustomed to go to notaries for legal issues in Mexico, but fail to realize that notaries in the United States do not do what lawyers do in the United States. A person who claims to be qualified to handle legal immigration matters but who does not have a bar license is called a "notario."

The educational requirements for US lawyers dwarf what is required to become a notary. Almost all lawyers must get a four-year undergraduate degree, followed by three years of law school, then they must pass the bar exam. 

Although being part of groups like the American Immigration Lawyers of America (AILA) is not required, many lawyers who practice immigration law become members. These professional organizations provide a means for lawyers to share ideas and solutions. Immigration government agencies are also in communication with AILA. A "notario" does not have these resources.

Stakes are high in immigration matters. If a person relies on the wrong advice, then removal may follow. Families may be broken.

Many immigrants are reluctant to speak to lawyers because they fear that a lawyer will expose them to removal. Cultural issues may prevent an immigrant from seeing an attorney. Money, too, may be a major concern.

The unfortunate truth is that immigration cases logjam courts and the Board of Immigration Appeals. About five years ago, each BIA member had to address about 80 cases per week. If an immigrant cannot articulate a case succinctly or clearly, he or she may suffer adverse consequences.

In 2006, Immigration Courts handled almost 369,000 cases, and 35% were represented by a lawyer. ICE removed 186,000 people in the fiscal year. Less than 50% of lawyers undertake pro bono (unpaid) work in a given year ("The Legal Profession and the Unmet Needs of the Immigrant Poor" by Robert Katzmann, judge on US Court of Appeals for the Second Circuit).

Immigration Rights | Employment Verification, SSN, ITIN

Employers must require workers to prove identity and eligibility to work within three business days of hire. An I-9 form verifies that a worker is eligible to accept employment in the US.

An employer and the worker both fill out the I-9. A social security number often proves identification.

Note that if the social security number does not match the designated worker, then an employer may later receive a “No-Match” letter. There is no immigration consequence. The letter does not prove whether the worker is undocumented or not. Also, the employer does not need to reverify status.

For the workers who are not eligible to get a Social Security Number, they may acquire an Individual Tax Identification number, or ITIN number.

In 2006 1.4 million people used ITIN when filing taxes, of which more than half were likely illegal immigrants. Opponents argue that ITIN numbers institutionalize illegal immigration. Supporters argue that our economy benefits when undocumented immigrants pay taxes.

If an individual is in removal proceedings, whether or not the immigrant paid taxes is a discretionary factor the Immigration Judge will consider, in totality with other factors. Matter of C-V-T-, 22 I&N Dec.7 (BIA 1998).

See a lawyer or accountant with knowledge of immigration issues if you seek tax advice related to immigration. A lawyer with an employment law background will help you hire new workers.