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Acquiring Legal Status Under Fedral Immigration Law

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The basics of acquiring legal status
under federal immigration law...

By Attracta Kelly, O.P.

Contrary to what seems to be a common misperception, an immigrant can acquire legal status in the United States in only a limited number of ways. This article provides a very basic overview of the major avenues. Readers should use it as a general guide. Those seeking legal advice on a specific situation should contact a qualified attorney.

The most common way for an immigrant to obtain legal status is through an application filed by a Family Member. The Family Member category is, in turn, divided into two general areas:

  • A current United States Citizen (USC) may apply for his/her spouse, children (under 21), and parents. This is called the Immediate Relative Category. Such applicants can acquire legal status very quickly (usually in as little as one year).
  • The second most common way for an immigrant to obtain legal status is through whatís known as the Preference Category. A USC may also apply for his or her unmarried sons and daughters (21 and over) processing takes about 6 years unless petitioner is from Mexico or the Philippines they take about 15 years, A USC may apply for married sons and daughters, processing takes about 8 years but Philippines and Mexico take about 18 years. USC over 21 may apply for siblings with a waiting period of about 11 years with Mexico14 and Philippines 22 years.
  • . A Legal Permanent Resident (LPR) who has not yet become a naturalized citizen may apply for his or her spouse and children and for unmarried sons and daughters. Applicants in this category waiting periods to get legal status -- from six to twenty years, depending on the nature of the family relationship and the applicantís country of origin.

Itís important to note that just because the spouse or parent has filed a petition for their family member in this Preference Category it does not give the family member any immediate legal right to live in the United States. Under the law, the family member must wait until the designated number of years has expired.

A second path to legal status involves a petition filed by an Employer for a necessary skilled worker. This process must first be approved by the United States Department of Labor after the employer has established that there is no citizen or legal permanent resident worker available to fill the particular position.

A third way for an immigrant to gain Legal Permanent Resident status is to first obtain refugee/asylum status. To qualify for asylum one must prove that he or she was the victim of persecution in his or her home country under one of the five protected areas (race, religion, nationality, membership in a social group, or political opinion.) An applicant must apply within the year one enters the US. It is a very time consuming process because one has to document all allegations of persecution. It is always difficult to find such documentation. We try to get it through State Department Reports and other international news sources, in affidavits from country experts and from whatever sources we can find to show that this particular individual was targeted and would most likely be targeted if he/she returned to the home country.

Finally, immigration law also allows a limited number of persons in very specific categories to "self-petition" Ė that is to apply for legal status on their own behalf. This includes: 1) certain specified groups of Salvadorans and Guatemalans, 2) persons afforded protection under the Violence Against Women Act (VAWA), 3) a category known as "Special Immigrant Juveniles" (these are children who have been neglected, abused or abandoned by their parents), 4) victims of human trafficking and 5) certain victims of other crimes.

The North Carolina Justice Centerís Immigrants Legal Assistance Project helps a limited number of low-income immigrants with certain kinds of legal problems related to immigration law. To learn more about the kinds of cases our project is able to help with, visit our website at www.ncjustice.org. Click on "Litigation and Legal Assistance" and then click on "Immigration Legal Assistance."

You may also contact us by phone. Client intake for immigration law matters takes place on Tuesdays from 9:00 a.m. to 5:00 p.m. only. We do not accept "walk-in" clients. The phone numbers are: 1-888-251-2776 (toll free) and (919) 856-2159 and (919) 856-2153. We do speak Spanish.

Attracta Kelly, OP is an attorney who specializes in immigration law. She directs the Immigrants Legal Assistance project at the North Carolina Justice Center. She is a member of the Adrian Dominican Sisters (Michigan, U.S.A.)

Dominican Preaching Archive

Preaching is at the heart of the Dominican vocation. The Dominican Leadership Conference claims for all members of the Dominican Family the right to preach, and commits itself to the struggle this claim entails. The injustices of our day compel us to place the charism of preaching at the service of the poor and powerless. The Dominican prophetic message, rooted in experience, study and prayer, will move both preachers and hearers of the word to act for the transformation of oppressive structures. The Conference on its part will act corporately, confronting evil with the Gospel and working for the construction of a just world order.

We embrace the mission of preaching for justice with a commitment to act in collaboration with one another and all those with and among whom we minister

------Dominican Leadership Conference

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