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Undocumented Immigrant or Out-of-Status Immigrant: Understanding Your Status

Immigration status in the United States is often complicated, with various terms used to describe people living in the country with different types of legal status, or none at all. As an immigration lawyer, I want to help you understand the specific terms that might describe your current status, since each one can affect what options are available for you. Today, we’ll go over the differences between being an undocumented immigrant and being an out-of-status immigrant. Though these terms might sound similar, they refer to different situations under U.S. immigration law. Knowing the distinction between the two can help you navigate your options and understand any potential pathways to legalization.

Undocumented Immigrant: What Does It Mean?

If someone is referred to as an undocumented immigrant, it means they’re living in the United States without legal authorization. There are two primary ways this can happen:

  1. Entering the U.S. without inspection: This occurs if a person crosses into the United States without going through a designated port of entry, meaning they weren’t formally inspected or approved to enter.
  2. Overstaying a Visa: Many people enter the U.S. legally with a visa, but if they remain after their visa expires, they’re considered undocumented.

As an undocumented immigrant, you’re living in the U.S. without formal authorization to stay or work, and unfortunately, you could be at risk of deportation if you come to the attention of immigration enforcement. The process to legalize your status from here can be challenging but not impossible, especially if certain eligibility criteria apply to you.

Out of Status: What Does It Mean?

Now, if you hear the term “out-of-status”, that generally refers to someone who entered the U.S. legally but lost their lawful status by not meeting certain conditions. For example:

  1. Losing Employment-Based Status: If you have a visa that’s connected to your job, you may fall out of status if you lose that job or if your visa requirements change.
  2. Failing to Meet Student Visa Requirements: If you’re on a student visa, you’re required to be enrolled full-time in school. If you drop out, fail to maintain the necessary credit hours, or change institutions without following the correct procedures, you could fall out of status.

As an out-of-status immigrant, you might have options to regain your lawful status or adjust to a more permanent form of residency, especially since you originally entered the country legally.

Key Differences to Understand

1. Pathways to Legalization

  • Undocumented Immigrants: Your options to change your status can be more limited if you entered without legal authorization. However, pathways do exist, especially through family-based petitions, humanitarian programs, or even certain employment-based visas in special cases.
  • Out-of-Status Immigrants: If you entered the U.S. legally, you generally have a wider range of options to adjust your status and regain lawful residency. This could include switching to a different type of visa or, in some cases, adjusting status within the U.S. without leaving the country.

2. Risk of Deportation

  • Undocumented Immigrants: Without legal authorization to stay in the U.S., you may be at higher risk for deportation if you’re detected by immigration enforcement.
  • Out-of-Status Immigrants: You may be somewhat safer if you’re actively seeking ways to regain lawful status. However, if no action is taken to adjust your status, you could still be deportable.

3. Work Authorization

  • Undocumented Immigrants: You generally do not have the legal right to work in the U.S., although some limited programs, like DACA, do provide temporary work authorization.
  • Out-of-Status Immigrants: Depending on your previous visa, you may still be eligible to regain work authorization if you can adjust your status.

Options for Each Category

If you’re an undocumented immigrant, you might qualify for certain relief options, like family-based petitions (if you have close family members who are U.S. citizens or permanent residents), marriage to a U.S. citizen, or, in some cases, asylum or humanitarian programs like Temporary Protected Status (TPS).

If you’re out of status, your options to adjust status often include different types of employment or family-based visas, or even adjusting within the U.S. based on your initial lawful entry. Many out-of-status immigrants find a solution by changing or reinstating their visa status or moving to a more permanent residency category.

What This Means for You

It is crucial to identify your specific status so we can explore your available options. Knowing if you’re undocumented versus out of status shapes the type of applications you might be eligible for, your options for work authorization, and the level of risk you face for deportation.

Questions About Your Immigration Status? Contact An Experienced Immigration Attorney

It is important to consult with a qualified immigration attorney. They can review your unique situation, discuss your long-term goals, and create a plan to move forward. Call immigration attorney Jessie M. Thomas at (214) 838-0045 or schedule a consultation.

Medical Exam

Form I-693, Report of Medical Examination and Vaccination Record

If you’re applying for a green card in the United States, you have to submit Form I-693, which is a medical exam and vaccination record completed by a specific doctor. This form shows that you are not inadmissible to the United States based on health reasons.

A Form I-693 that is signed by the civil surgeon on November 1, 2023, or later does not expire and can be used for any immigration benefit application at any time in the future.

Note: if a USCIS officer has reason to believe that the applicant’s medical condition has changed since the civil surgeon signed the Form I-693 or that the Form I-693 does not accurately reflect the applicant’s medical condition, then the officer has the discretion to request further evidence or a new or updated Form I-693.

If I am applying for an immigrant visa outside the United States, do I need a Form I-693?

No. If you apply at a consular post, you will have a medical examination conducted by a DOS panel physician.

Can anyone complete the Form I-693?

Only a doctor listed on the USCIS website at www.uscis.gov/tools/find-a-civil-surgeon may perform the exam.

How much does it cost to have the Form I-693 completed?

Rates vary by physician. Do your research to compare what different offices charge. When scheduling the
appointment, tell the office that it is for an immigration medical examination.

What should I bring to my medical examination appointment?

  • Government-issued photo identification;
  • List of medications you are currently taking;
  • Vaccination records;
  • Proof of COVID-19 vaccination, if applicable;
  • Any other medical records, if available;
  • A current edition of Form I-693, available at https://www.uscis.gov/i-693

What happens at the appointment?

You’ll sign the certification at the start of the immigration medical exam to confirm that you agree to the exam and that all the information you provide about the exam is true. During the medical examination, the civil surgeon will perform tests for communicable diseases of public health significance and screen for certain physical or mental disorders, as well as for drug addiction and abuse. The civil surgeon will also make sure that you have all required vaccinations. Additional testing may be necessary.

When all testing has been completed, the civil surgeon will sign Form I-693 and put it in a sealed envelope.

IMPORTANT: Do not break the seal or open this envelope. USCIS will not accept Form I-693 if it is not in a sealed envelope or if the envelope is altered in any way. The civil surgeon should provide you with an additional copy of the signed Form I-693 for your records.

When will the Form I-693 medical exam be submitted to USCIS?

You may submit the completed medical exam with your green card application or later, in response to a Request for Evidence.

NOTE: Always check with your attorney before mailing anything to USCIS.

How long is Form I-693 valid?

A Form I-693 that was properly completed and signed by a civil surgeon on or after November 1, 2023 does not expire. A Form I-693 completed prior to that time is valid for two years from the date that the civil surgeon signed it.

Form I-693 Questions?

The information in this post is intended for general information purposes only and does not constitute legal advice. You should not act or rely on any information in this post without seeking the advice of a competent, licensed immigration attorney.

For more information on how this might apply to your case, please contact immigration attorney Jessie M. Thomas at www.staylegally.com/free-case-evaulation/.

Know Your Rights: What to Do If You Are Detained at a Port of Entry (LPR)

All people arriving at the U.S. border or a port of entry have basic rights, and lawful permanent residents (LPRs), also known as green card holders, enjoy greater rights than non-immigrants when returning to the United States after travel abroad. Like all international travelers, LPRs are subject to inspection by U.S. Customs and Border Protection (CBP) when arriving at an airport or land port of entry. As an LPR, CBP will screen you to determine whether you are a “returning resident” or an “arriving alien.”

If questions arise and CBP is unable to admit you quickly, you may be taken to a separate area for “secondary inspection.” A referral to secondary inspection by itself is not an adverse action, but you can expect to be detained anywhere from a few minutes to several hours or longer if an issue arises. During secondary inspection, CBP will ask you questions and may collect biographic and biometric data, run record checks, and determine whether you should be admitted to the United States.

If you are detained by CBP in secondary inspection, you have the following rights:

  • You have the right to contact your consulate for assistance. The consulate can help you contact a lawyer or your family.
  • If you have a lawyer, you should ask CBP for permission to contact your lawyer. Note, however, that CBP may tell you that you do not have the right to speak to an attorney.
  • You have the right to review all written statements that are prepared for you, in a language that you can understand.
  • If you do not agree with the contents of any papers that are presented to you, you may refuse to sign them.
  • You do not have a right of privacy that protects your mobile phone, computer, tablet, or other electronic devices. CBP may search your device and access your email and screen your social media activity during the inspection process. Your phone, laptop, or other digital device may be held and returned to you later.

If CBP determines that you are a “returning resident”, you should be processed quickly and admitted to the U.S. However, CBP will consider you an “arriving alien” if it determines that you:

  • Have abandoned or relinquished your LPR status;
  • Have been absent from the U.S. for a continuous period of more than 180 days;
  • Engaged in illegal activity after departing the U.S.;
  • Departed the U.S. while in removal proceedings or extradition proceedings;
  • Committed certain criminal offenses unless you were granted an immigration waiver; or
  • Are attempting to enter without inspection.

Right to a Hearing Before an Immigration Judge

An LPR who is deemed to be an “arriving alien”, may be charged as removable from the United States. LPRs that are charged as removable have the right to a hearing before an immigration judge.

Abandonment of Residence/LPR Status

CBP may attempt to convince you that you abandoned your residence because of your absence from the United States and may urge you to sign a Form I-407, Record of Abandonment of Lawful Permanent Resident Status. However, it is important to know:

  • You cannot lose your LPR status solely because of time spent abroad.
  • An LPR remains an LPR unless the government proves abandonment by clear, unequivocal, and convincing evidence and an order of removal is issued by an immigration judge and becomes final.
  • Form I-407 must be signed voluntarily. You may refuse to sign the form and there are no negative consequences if you refuse to sign it.

If CBP believes that you abandoned your U.S. residence and you refuse to sign a Form I-407, CBP must issue you a Notice to Appear (NTA) before an immigration judge who will determine if you have abandoned your U.S. residence. CBP cannot make this decision on its own.

If CBP believes that you abandoned your U.S. residence and you sign a Form I-407, you still have the right to request a hearing before an immigration judge.
If CBP takes your permanent resident card, you have the right to other evidence of your LPR status, such as a stamp in your passport.

Future Travel. To avoid delays at the ports of entry or legal issues in the future, you should consult with an immigration attorney prior to traveling if you:

  • Have a criminal record (criminal convictions or a pending criminal charge).
  • Have an application pending with U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review (EOIR).
  • There is anything in your immigration history that was not disclosed during your immigration process or that might cause a government official to question you about the reason for your travel or about your immigration history.

Questions? Want to Avoid Delays in the Future? Contact an Experienced Immigration Lawyer

To avoid delays at a port of entry or legal issues in the future, it is important to consult with a qualified immigration lawyer. Call immigration attorney Jessie M. Thomas at (214) 838-0045 or contact Law Office of Jessie M. Thomas office for answers.

Printable Factsheet to Help you Understand Your Rights If You Are Detained at a Port of Entry (Legal Permanent Residents)

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What to Do if You are Detained at a Port of Entry {Lawful Permanent Residents)

What to Do if You are Detained at a Port of Entry (Lawful Permanent Residents)
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