Can an immigration lawyer help with adjusting status for someone who entered illegally?

Yes, an immigration lawyer can help with adjusting status for someone who entered illegally, but the situation is complex and heavily dependent on specific facts. Under the Immigration and Nationality Act (INA), adjustment of status generally requires a lawful admission or parole into the United States, which is not the case for someone who entered without inspection (EWI). However, there are limited legal pathways that may allow a person with unlawful entry to adjust status, and an experienced attorney can evaluate eligibility and navigate these options.

What is the general rule?

Adjustment of status (Form I-485) is a process where a person already in the United States applies for lawful permanent residence (a green card) without leaving the country. The law at INA § 245(a) requires that the applicant be “inspected and admitted or paroled” into the U.S. A person who entered illegally-by crossing the border without inspection-has not been admitted or paroled, so they do not qualify for adjustment under the standard rule. This is a critical distinction from someone who overstayed a visa or entered with a valid document but later violated status.

Are there exceptions for illegal entrants?

Yes, there are specific statutory exceptions that allow certain individuals with illegal entry to adjust status. The most notable exception is under INA § 245(i), which was available through a sunset date in 2001. This provision allows a person who entered illegally to adjust status if they are the beneficiary of a qualifying immigrant visa petition (family- or employment-based) or a labor certification application filed on or before April 30, 2001, and they pay a penalty fee. Other exceptions may apply for certain categories, such as:

• VAWA self-petitioners: Battered spouses, children, or parents of U.S. citizens or lawful permanent residents who entered illegally may adjust status under INA § 245(a) if they meet the requirements.
• Humanitarian parole: If a person was paroled into the U.S. by USCIS for urgent humanitarian reasons, and they later have a qualifying visa petition, they may adjust status. But note: this is not the same as illegal entry itself.
• Special immigrant juvenile status (SIJS): Certain children under 21 who entered illegally and are dependent on a juvenile court may adjust status through SIJS, though they typically need to have been lawfully admitted or paroled or meet narrow exceptions.

For most individuals, the common pathway for an illegal entrant involves leaving the United States to complete consular processing at a U.S. embassy abroad. However, this triggers the three-year or ten-year bar under INA § 212(a)(9)(B) for unlawful presence, unless a waiver (such as Form I-601) is granted.

Why a lawyer is essential

Navigating these exceptions requires precise legal analysis. An immigration lawyer can:

• Determine whether the individual qualifies for an exception based on their unique entry and immigration history.
• Assess whether a waiver is available for the unlawful presence bar and guide the client through the application process, including Form I-601 (Application for Waiver of Grounds of Inadmissibility).
• Identify if the client has a family-based petition from a U.S. citizen spouse, parent, or child that could allow for a “provisional unlawful presence waiver” under the 2013 rule (for certain relatives of U.S. citizens or permanent residents).
• Evaluate if the client’s illegal entry might be overcome through a “parole in place” request for military family members or certain other categories, but this is discretionary and limited.
• Plan the safest legal strategy, including advising against leaving the U.S. without first securing an approved waiver, to avoid extended separation from family.

What does the data say?

According to USCIS annual reports, adjustment of status applications under INA § 245(i) remain a rare but utilized pathway. For example, in fiscal year 2022, USCIS approved over 5,000 adjustment applications under this provision. However, the vast majority of adjustments involve individuals who entered lawfully. For those with illegal entry, the success rate depends heavily on eligibility for an exception and the quality of legal representation. A 2020 study by the American Immigration Council noted that legal representation dramatically increases the likelihood of success in immigration proceedings, including adjustment cases.

Important cautions

U.S. immigration laws and policies are subject to change. The legal analysis depends on the specific date of entry, the individual’s family or employment ties, and their immigration record. There is no guarantee that any particular pathway will be available or that a waiver will be granted. Anyone considering pursuing adjustment of status after illegal entry should not attempt to file without a thorough consultation with a qualified immigration attorney. This blog post provides general information only and should not be taken as legal advice for any specific case. Laws and policies may change, so always consult an experienced lawyer for your situation.