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When an immigrant is detained by U.S. Immigration and Customs Enforcement (ICE), your first concern is usually to get them released and back home. Yet, you may quickly begin to wonder whether and how they can remain in the U.S. legally. One option is to apply for adjustment of status—to apply for a green card from within the U.S. But can a detained immigrant apply for a green card? The answer is yes if they meet specific requirements.
At the Law Office of Rosina C. Stambaugh, we understand the urgency of immigration cases involving detained individuals. Our immigrant-filled team provides compassionate, client-focused legal support. We can guide an eligible detainee to apply for adjustment of status, even if they remain in U.S. custody during the process. Contact us for a consultation to discuss how we can help.
What Is Adjustment of Status?
Adjustment of status is the process a noncitizen currently in the U.S. uses to apply for lawful permanent resident (LPR) status without having to leave the country. Getting LPR status means getting a green card, which allows you to live and work in the U.S. permanently.
When Can a Detained Immigrant Apply for a Green Card?
Detained immigrants may qualify to adjust their status if they qualify for a specific available path to a green card based on U.S. law and meet certain requirements. Detained noncitizens may be eligible for a green card based on one of several specific options U.S. immigration law authorizes, such as:
- Family-based sponsorship;
- Employment-based sponsorship;
- Asylum or refugee status;
- Cancellation of removal; and
- Victims of abuse, crime, or human trafficking.
Each pathway has requirements. If a noncitizen has a potential path to a green card, whether they can or should file for adjustment of status when detained depends primarily on whether they are what immigration law refers to as “inadmissible.”
Inadmissibility
An inadmissible noncitizen is legally ineligible to get a green card without first leaving the U.S. Noncitizens may be inadmissible for several reasons, most often related to immigration violations or criminal histories.
Immigration Violations
Common immigration violations that may make a person inadmissible include:
- Overstaying a visa or other status—remaining in the U.S. beyond the expiration of valid status;
- Violating the terms of status—working without authorization;
- Having prior removal orders—having been previously ordered to leave the U.S. by an immigration judge;
- Unlawful reentry—reentering the U.S. after being removed or deported without permission;
- Entry without inspection—entering the U.S. without passing through a designated port of entry or being inspected by immigration officials;
- False claims to U.S. citizenship—misrepresenting oneself as a U.S. citizen on official documents or applications; and
- Fraudulent use of documents—using forged documents showing legal status when none exists.
The consequences of many of these violations depend on how long the noncitizen lived in the U.S. without legal status or how much “unlawful presence” was built up.
Entry without inspection
When a noncitizen crosses a U.S. border without going through border security, we call it “entering without inspection” (EWI). The noncitizen must be “inspected” at a U.S. “port of entry” before going anywhere within the U.S. Ports of entry include:
- Land border checkpoints,
- International airports, and
- International seaports.
The noncitizen is inspected if a U.S. Customs and Border Protection (CBP) officer reviews their documents as they arrive in the U.S. If they did not present documents to a CBP officer the last time they entered the country, they typically cannot adjust their status.
Criminal History
Certain criminal convictions can prevent adjustment of status. Some of these convictions include:
- Aggravated felonies—serious crimes such as murder, rape, drug trafficking, or firearms offenses;
- Crimes of moral turpitude—offenses involving fraud, theft, or actions deemed inherently dishonest or immoral;
- Drug-related offenses—convictions for drug possession, distribution, or trafficking;
- Domestic violence or child abuse—convictions involving harm to a spouse, partner, or child; and
- Human trafficking or smuggling—involvement in trafficking people or assisting others in entering the U.S. unlawfully.
It is important to speak with an experienced immigration lawyer about the noncitizen’s criminal history to determine if they are inadmissible.
Other Reasons for Inadmissibility
Additional reasons a noncitizen may be unable to adjust status include:
- Health-related issues—having certain communicable diseases or lacking required vaccinations;
- Security-related concerns—involvement in espionage, terrorism, or activities deemed harmful to U.S. national security; and
- Being a public charge—the noncitizen will likely depend on government assistance programs to get by in the U.S.
Proving a noncitizen will not be a public charge may require someone to agree to help them monetarily should they not have enough to get by while living in the U.S.
Waivers of Inadmissibility
In limited circumstances, the noncitizen may apply for a waiver of inadmissibility. To qualify, they typically have to provide evidence that leaving the U.S. to apply for a green card would cause extreme hardship to a relative, often a spouse or child, who is a U.S. citizen or LPR. Extreme hardship can be difficult to prove but may involve:
- Severe financial difficulties, such as the inability to maintain a home or cover medical expenses;
- Serious medical issues requiring the noncitizen to remain in the U.S.;
- Significant disruptions to educational opportunities of the noncitizen’s children or dependents;
- Severe emotional or psychological strain on the relative, particularly if they depend heavily on the applicant for support; or
- Safety concerns if the relative is forced to relocate to a country where they may face dangers or lack access to necessary resources.
If a noncitizen is inadmissible, they may need to apply for a waiver of inadmissibility before or at the same time as when they apply for adjustment of status while detained.
We Can Help
Navigating the adjustment of status process while detained can be daunting, but we are here to help. Our experience in deportation defense, family-based petitions, and waivers of inadmissibility allows us to craft personalized legal strategies tailored to your needs. If you or your loved one is detained and seeking legal status in the U.S., contact the Law Office of Rosina C. Stambaugh today.
