- 19-Apr-2025
- Healthcare and Medical Malpractice
While in immigration detention, a detained immigrant may be able to change their legal status depending on their individual circumstances and eligibility for certain immigration benefits. Changing one’s legal status typically involves applying for relief or a visa, adjusting the terms of their stay, or seeking asylum. However, being in detention can complicate this process, requiring the immigrant to follow specific procedures and potentially seek legal counsel to navigate these options effectively.
A detained immigrant may apply for asylum if they fear returning to their home country due to threats of persecution. Asylum seekers can request relief based on their race, religion, nationality, political opinion, or membership in a particular social group. The application for asylum can be filed while in detention, and if granted, the immigrant could change their status to that of a lawful asylum seeker. It’s important to note that asylum applications are subject to strict timelines and must generally be filed within one year of entering the U.S. unless there are exceptional circumstances.
If the detained immigrant has an immediate family member who is a U.S. citizen or lawful permanent resident, they may be eligible for family-based immigration relief. This could include filing for an I-130 petition (petition for an alien relative) and later adjusting status through the I-485 application (application for adjustment of status). Depending on the case, the immigrant may be able to change their legal status and obtain a green card (lawful permanent resident status) while still in detention. The immigrant must prove their relationship to the family member and meet other eligibility requirements.
In some cases, an immigrant in detention may be able to apply for employment-based immigration relief if they have an employer who is willing to sponsor them for a work visa (such as an H-1B or L-1 visa). If the immigrant is eligible, they could change their legal status to that of a lawful work visa holder, allowing them to remain in the U.S. while the employer files for the appropriate petition on their behalf.
Immigrants from countries designated for Temporary Protected Status (TPS) may be eligible to apply for this status even if they are in detention. TPS provides temporary legal status and protection from deportation for individuals who cannot return to their home country due to ongoing armed conflict, natural disasters, or other extraordinary conditions. Applying for TPS could allow a detained immigrant to stay in the U.S. temporarily, changing their status from undocumented or detained to a lawful status under TPS.
An immigrant in detention may be eligible to apply for cancellation of removal if they meet specific requirements, such as having been in the U.S. for a certain number of years, demonstrating good moral character, and showing that their removal would cause extreme hardship to a qualifying relative, such as a U.S. citizen child or spouse. If granted, cancellation of removal allows the immigrant to remain in the U.S. and adjust their status to that of a lawful permanent resident.
Certain individuals may qualify for specific types of visas that can allow them to change their legal status while in detention, including:
Deferred action is a form of relief that temporarily postpones deportation and may allow an immigrant to apply for work authorization. While it doesn’t lead to a permanent change in status, it could provide relief for a detained immigrant while they pursue other immigration options.
It is highly recommended that a detained immigrant consult an immigration attorney to explore all possible legal avenues for changing their status. A lawyer can help the immigrant understand their eligibility for relief options, ensure proper filing of documents, and represent them in hearings.
Depending on the type of relief the detained immigrant is seeking (e.g., asylum, family-based adjustment), the appropriate petition must be filed with U.S. Citizenship and Immigration Services (USCIS), Immigration Court, or the Department of Homeland Security (DHS). The immigrant may need to provide evidence of eligibility, such as family relationships, employment offers, or proof of persecution in their home country.
If the immigrant is in removal proceedings, they must attend their immigration court hearings and request the opportunity to change their legal status during the proceedings. The judge will evaluate the case and decide whether to grant the requested relief.
After filing for a change in legal status, the detained immigrant should closely monitor their application status. They should also attend all scheduled hearings or interviews related to their case.
Ana, a detained immigrant from Honduras, fears returning to her home country due to gang violence. She applies for asylum while in immigration detention. With the help of her attorney, she files an asylum application and attends her immigration hearings. Eventually, her asylum claim is approved, and she is granted asylum status, which changes her legal status to a lawful asylum seeker and allows her to remain in the U.S. legally.
A detained immigrant may be able to change their legal status through various avenues, such as asylum, family-based immigration, or employment-based relief, depending on their eligibility. While detention may complicate the process, it does not prevent an immigrant from pursuing legal remedies to change their status. Legal assistance is essential for navigating these complex immigration procedures while in detention.
Answer By Law4u Team
Discover clear and detailed answers to common questions about Immigration Law. Learn about procedures and more in straightforward language.
