As an immigration attorney, this is a frequent question pondered in my presence. Other similar questions include:
- What does he need to become a citizen?
- What can I do to sponsor an employee who’s here undocumented?
- What can I do to help my star student who’s here unlawfully?
These seemingly simple questions have quite complex answers and almost always the answer is “it depends.” For many immigrants, however, nothing can be done to change their unauthorized immigration status despite the fact they have lived here years, have a clean criminal history, are a hard worker and have family members who are U.S. citizens.
Answering the questions presented above is a bit like opening Pandora’s Box. I was recently invited to do a podcast for Indivisible Fort Worth. At the time of the podcast the Administration had just rescinded DACA (Deferred Action for Childhood Arrivals) which was a program implemented by the Obama Administration that granted work authorization and protection from deportation to immigrant youth brought here as children who passed a background check and met certain education and physical presence requirements. To understand DACA and why it is so important to so many people, however, it is also necessary to understand why many undocumented individuals cannot just “wait in line” to change their immigration status. For many, there simply is no line … or the line entails a fifteen to twenty year long wait. I answered questions related to DACA and outlined a basic sketch of how our immigration system works in the podcast located here: http://indivisibleunderpod.com/podcast/indivisible-under-pod-intro-to-immigration/.
Essentially, to become a U.S. citizen it takes three steps: (1) immigrant visa petition, (2) application to became a lawful permanent resident (LPR) and three to five years later (depending on the case) (3) U.S. citizenship. This seems easy enough, right? Unfortunately, many immigrants who benefitted from DACA and who would have benefitted from the failed DREAM Act cannot get past hurdle number (1): the immigrant visa petition, much less hurdle (3): U.S. citizenship.
To live permanently in the United States someone must “petition” for the immigrant. At its most basic level and in the vast majority of cases, there are only two ways to obtain the elusive “immigrant visa petition”: (1) through a U.S. citizen or LPR family member, or (2) through an employer.
Let’s start with employers because this is the easiest one to mark off the list for undocumented immigrants living in the United States. In order for an employer to petition for (or “sponsor”) an immigrant already living in the United States, the immigrant must apply to “change” his or her status. To “change” one’s status, one must currently be in lawful immigration status. This means if an immigrant entered the country unlawfully or if he or she entered lawfully on a temporary visa, but overstayed the amount of time granted, an employer cannot petition for him or her.
What if the intending immigrant just leaves the country to right his wrong? Not so fast. This is known as “self-deportation” which can get the immigrant barred from the country for up to ten years (see below).
Now, let’s explore immigrating through family. A U.S. citizen who is over the age of twenty-one may petition for (or “sponsor”) his or her spouse, children, parents, sons and daughters over twenty-one and brothers and sisters. LPRs may petition their spouses, children and unmarried sons and daughters over twenty-one.
Easy enough, right? Not quite. Sons and daughters over the age of twenty-one and brothers and sisters face up to a twenty-year-long wait, depending on what country the immigrant is from. This means if the petition is approved today, you get in line with a number to come up twenty years from now. Spouses and children have less of a wait (no wait for spouses and children of U.S. citizens and about a year-and-a-half to two year wait for spouses and children of LPRs).
There is another huge problem, however, for all immigrants who entered the United States unlawfully. It is the dreaded “ten year bar”. This bar blocks anybody who has been present in the United States without authorization for a year or more from obtaining an immigration benefit for ten years. To get around the bar, the immigrant must apply for a “waiver” which requires he or she have a spouse or a parent who is a U.S. citizen or lawful permanent resident. No other relatives qualify an intending immigrant for the waiver.
This means that a parent of a U.S. citizen child may never qualify to immigrate through his or her child. Why? For example: Parent entered the U.S. unlawfully and lived in the U.S. over a year without authorization and had Child. Twenty-two years later, Child is twenty-one and petitions for Parent. Parent must go back to his or her country of citizenship to obtain the “immigrant visa” at the U.S. consulate abroad. Once Parent departs the U.S., Parent is subject to the “ten year bar”. To get the bar waived, Parent needs a spouse or a parent who is a U.S. citizen or LPR (not a child). If Parent’s parent or Parent’s spouse is not a U.S. citizen or LPR, Parent does not qualify for the waiver. This means Parent cannot immigrate through Child without waiting ten years after his or her departure from the United States. This means Parent will most likely never travel abroad for the immigrant visa and parent is essentially locked in the United States.
Our immigration system, with its bars to entry and unobtainable waivers, locks millions of immigrants within our borders. If they leave, they are subject to bars and may never be able to return (and we haven’t even discussed the “permanent bars” to immigration). Suffice it to say it’s complicated and explains why there are millions of unauthorized immigrants living in the United States who cannot simply “wait in line” to change their status.
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At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas immigration law attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.
