How can she get legal U.S. resident status?
February 12, 2010 4:33 PM   Subscribe

[immigration filter] How can someone who has overstayed her Visa gain legal status in the United States?

An acquaintance wants to remain in the United States legally, though she is currently here on an expired travel Visa. Here are the details, as a I understand them:

* She is from Guatemala.
*She is going to give birth next week in the United States.
* She has been here for about five years, and works under the table in Los Angeles.
* I do not know the legal status of the child's father.

I know that our immigration laws tend to frown on people whose status is not legal, and I know that we don't shy away from splitting up families if the parents are not citizens and the children are.

But what are her options?

posted by kensington314 to Law & Government (8 answers total)
Get a lawyer.
posted by Faint of Butt at 4:35 PM on February 12, 2010

Seconding get a lawyer. I work for an immigration lawyer, and have found that even the most perfect cases get rejected for simple things like typos. Since she's here illegally, she absolutely needs to get a lawyer to help her navigate the obnoxiously overcomplicated process. See if there are any non-profit firms in your area that could assist. If you're near Chicago, I have heard that Heartland Alliance (not who I work for) is very welcoming.
posted by phunniemee at 4:44 PM on February 12, 2010

Definitely speak to a lawyer.
posted by dfriedman at 4:55 PM on February 12, 2010

Immigration law is complex and fact-specific, but here's how things work generally:

An overstay that long creates a bar for admission for 10 years. When your acquaintance leaves the US (through her own volition or by getting removed) and after 10 years have passed, she may reapply for a visa at a US Embassy or Consulate from her home country but not from a different country (like Mexico). This is because the overstay provision in IIRIRA prohibits third-country processing of visas for people who have overstayed on a visa. Because she has overstayed her visa she cannot adjust her status and become legal while remaining in the US.

If she leaves the US, she could apply for a visa during the 10-year bar and try to get a waiver of the ineligibility from the consular officer who interviews her in Guatemala for the new visa. There are waivers for humanitarian purposes, family unity, or if admission is in the public interest. Parents of US citizens may obtain waivers for certain visas.

One way to prevent getting removed from the US in these situations is by filing for a cancellation of removal (if she gets picked up by ICE and removal proceedings are started against her). Non-LPRs may apply to the Attorney General for this if the immigrant has 10 years of continuous physical presence, no convictions, and removal would cause exceptional and extremely unusual hardship to a US citizen parent, spouse, or child. Showing this hardship is extremely difficult and her best bet would be to talk to an immigration lawyer about it.
posted by lockestockbarrel at 5:11 PM on February 12, 2010

I've accompanied friends to see lawyers and the initial consultation played out exactly as lockestockbarrel has described. Your friend is not in a terribly good position now, but she would still be doing herself a serious disservice if she didn't save up funds and find a lawyer, as everyone is saying.

In cases like this, I think Metafilter can only help give you a rough idea of what to expect. This sort of conversation can be emotionally charged and it could help your friend and her lawyer if everyone is calm and prepared. For example, she needs to be able to say whether she's ever exited the country since she arrived, how long she was gone, how she was able to get back in, etc.
posted by tantivy at 6:08 PM on February 12, 2010

First advice would be to get a lawyer but it will probably work out something like this...Depending on how long she has overstayed her visa, should she leave or be deported she will have a three year or ten year bar from returning (bar waivers are possible to get but very difficult). If she has someone here who could sponsor her, like a husband, she may be able to change her status here. If she has been working illegally on, for example, a tourist visa, that isn't good. She may have some hope if the US still has TPS (temporary protected status) for Guatemalans like they have had in the past (basically means people from certain countries cannot be deported back into a dangerous situation so they get to stay here temporarily). If she has her child in the US, the child will be a US citizen however the child cannot sponsor a parent until the kid is 21 years old. Basically she needs a lawyer and needs to avoid ICE/law enforcement until she may get her situation figured out. Mostly likely she is like the 12+ million other illegals who do not have a path to citizenship and will remain so until congress gets busy and gets the immigration mess figured out.
posted by MsKim at 6:29 PM on February 12, 2010 [1 favorite]

Yes, lawyer, immediately.

To add purely anecdotal information: I had a friend in a very similar scenario. She was pregnant and had overstayed her visa. Initially, she was going to be deported prior to giving birth, but she got her doctor to write a letter stating that air travel would be too dangerous at that stage in her pregnancy. She was deported shortly after giving birth. She's now living in France (long, long story having to do with her husband's dual-citizenship elsewhere) and doing quite well, but she will not be back for a long time - if ever.
posted by pecanpies at 8:33 AM on February 13, 2010

Lawyer, ASAP.

I've been through the detainment/near-deportation dance with my ex-husband, and it was only with an extremely experienced, well-connected immigration attorney that he was walked back through the airport gates and allowed to go home.

There are volunteers who can help with the forms and such at immigration centers, but she shouldn't go near any of them until she has a lawyer.
posted by batmonkey at 1:44 PM on February 13, 2010

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