If you entered the United States illegally and wish to obtain status, you may likely be required to obtain an Immigrant Visa from the consulate in your home country. Under current law, a person who has entered the United States illegally, or “without inspection,” will not be granted any benefit by United States Citizenship and Immigration Services (“USCIS”) and, therefore, would be required to return to his or her home country in order to obtain an immigrant visa. An exception is if a family member filed a petition or employer filed a labor certification prior to April 30, 2001. In this case – even if it is not the same person or employer – the person could qualify for the pre-2001 amnesty and would be able to adjust status with the payment of a $1,000 fine, despite having entered the United States without inspection.
Seeking consular processing requires filing an immigrant petition by your sponsoring relative and filing a waiver for your illegal presence. A “waiver” is your request for USCIS to forgive you for entering the United States illegally and remaining here illegally. It requires that your sponsoring relative demonstrate “extreme hardship” to him or her resulting from your inability to return to the United States with an immigrant visa. As can be seen, returning to your home country carries with it the risk that USCIS would not find that there is enough hardship entitling you to a waiver, resulting in having to remain behind. Successive applications are permitted and, therefore, if the initial application is denied, chances increase with a subsequent application.