Hi, have a new employee that I found out this morning is an illegal,and has been picked up by the immigration authority. IS there anything I can do to help this person, is he able to apply for a green card, or a work permit at this point?
State/Country relating to question: Wisconsin
Nothing, just occurred this morning
Most likely not, but I will try to give you the options that he does have. How did he enter the U.S.? Illegally or with a visa? Which visa?
HI,I do not have that information, but believe he may have had a visa permit at one time...I know he has been living here for several years, has a vehicle registered in his name.
Ok, well in any case, he cannot do anything through employment without leaving the U.S. and if he leaves, he cannot come back for 10 years. So let's assume he entered illegally. Unfortunately, the only forgiveness that existed for entering illegally was under INA 245(i) which states that if he had an I-130, I-140 or Labor Certification properly filed for him ON or BEFORE April 30, 2001, AND he could prove that he was inside the U.S. on December 21, 2000 unless the I-130, I-140 or Labor Certification was filed on or before January 14, 1998, and then he could pay a $1000 penalty and adjust status to U.S. Lawful Permanent Residency. If he did not have any of those types of applications filed for him before that date, then he has three options:
1) Wait for an immigration law to come out that will help him. I have high hopes that next year or maybe the following, something good will come out.
2) Apply for Asylum (he had to have done this within the 1st year be being in the U.S. unless there are changed country conditions), Withholding of Removal, Convention Against Torture, or Cancellation of Removal. The first three things are if he fears to return to his home country because he believes that he will be specifically targeted due to his race, religion, nationality, social group or political opinion and that he runs a high risk of great bodily injury, torture, or death as a result. The last, Cancellation, he would have to prove that he has at least 10 years in the U.S. AND he must also prove that if he is deported, a U.S. Citizen or Lawful Permanent Resident that depends upon him will suffer exceptional and extremely unusual hardship. This hardship must be something more than emotional separation hardship or financial hardship, so it is difficult to get.
3) If he marries a U.S. Citizen (for love, of course), he could file an I-130 here in the U.S. (which will give him no legal status, but he might be able to get a drivers license with the receipt), but once that I-130 is approved, really the only thing he can do is leave the U.S. and apply to come back in at the U.S. Embassy/consulate in his home country as the spouse of a U.S. Citizen. At that point, they will want to deny him because he entered illegally and stayed. So he would have to apply for an I-601 waiver (forgiveness) and to get this waiver he will have to prove that his spouse will suffer extreme hardship if he is not allowed back in to the U.S. These waivers are very difficult to get. The reason they are difficult to get is because the hardship probably will need to be more than just economic hardship or emotional separation hardship. So because they are difficult to get, no one wants to risk leaving the U.S. and getting stuck outside for 10 years if it isn't granted.
You can look at this link to get more information on I-601 waivers. It is from the U.S. Embassy in Syria, but it is a good description and the process should be similar in all U.S. Embassies.
and here is another link:
And here is a link to what extreme hardship is:
Now if he entered legally on a visa that allows adjustment of status, then if he married a U.S. Citizen, he could get Residency without having to leave the U.S. or he could wait for a U.S. Citizen son or daughter over 21 to petition for him.
Also, IF he qualified under 245(i), you might be able to apply for him as an employee, but because that process takes so long, even years if he doesn't have a masters degree or higher and a job in that field, it would not save him from deportation.
I am truly sorry for the bad news, but the options are very limited at the moment. Please let me know if you have any additional questions. I would be happy to answer them for you without additional charge, if not, please do not forget to click accept or I do not get credit for my assistance to you. You are not charged again. If you would like to request me in the future, just put my name on the subject line. Positive feedback for my service to you (not the state of the law as it is) is always appreciated as well as any bonus if you think I deserve it. Thank you.
10+ years of experience in various aspects of U.S. Immigration Law.
I understand your response. There is no way then to pay for a work permit after the fact?If he is being held by Immigration, how quickly do they deport people?
That is correct. When a person is even one day illegally in the U.S., all the options through employment close unless they qualify for 245(i).
As far as how long it takes to be deported, that depends on a few things. If he does not fight it and his country is quick about accepting him back, it could be a couple of weeks or so. If he fights it (he only has the options I listed in order to fight it), then it could take a few months (if he is detained) or maybe a year or more if he is not detained and he appeals any negative decision.
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