Why it’s so hard to obtain legal status, even through marriage and family

By Leslie Berestein Rojas  (Originally posted on 89.3 KPCC/Southern California Public Radio / MULTI-AMERICAN)

recent series of posts explored the immigration limbo lived by families of mixed status, families in which some members are U.S. citizens and/or legal residents while others remain undocumented, unable to adjust their immigration status in spite of family and marriage ties to the United States.

Mixed-status families are surprisingly common. In 2009, the Pew Hispanic Center estimated there were 8.8 million people living in families of mixed immigration status in the United States. This makes for a conservative estimate, as Pew’s definition was limited to families with unauthorized immigrants and their U.S. citizen children. Even more common are mixed-status extended families, one example being the Kenyan-born family of President Obama, whose undocumented half-uncle was arrested in August, and whose aunt was up for deportation until being granted asylum.

The Multi-American series on mixed-status families featured the first-person stories of U.S. citizens and legal residents who are the spouses, children and siblings of undocumented immigrants. Many had tried to adjust their status and failed. One U.S. citizen woman whose husband had been unable to adjust, and now faces deportation, wrote: “People who don’t have undocumented family members don’t believe me when I tell them he can’t get papers.”

It’s commonly believed that marriage to a U.S. citizen is an immigration cure-all, as is having U.S.-born children. Not so. In fact, for people who entered illegally, current laws make it next to impossible to obtain legal status. Legal expert David Wolfe Leopold, an immigration attorney and former president of the American Immigration Lawyers Association, explains why.

M-A: Why is it so difficult to adjust immigration status for those who lack legal status, even through family or marriage?

Leopold: The law limits adjustment to non-immigrants who have maintained status, not worked without authorization, etc. There are few exceptions to this general rule.

In the family based context, a person may adjust if they were lawfully admitted or paroledinto the U.S., and they are married to a U.S. citizen or the parent of a U.S. citizen who has reached the age of 21. In the employer sponsorship context, a person may adjust if they were lawfully admitted (not paroled) into the U.S. and their failure to maintain status has been for no longer than six months. Asylees and refugees may adjust regardless of lawful admission.

M-A: What if someone entered illegally without a visa, as opposed to someone who entered lawfully and overstayed? Is it possible to obtain legal status?

Leopold: For most people, no. There are two exceptions to this, commonly known as 245(i): 1) if the person could have adjusted by an immigration process started before January 18, 1998, or; 2) if the person could have adjusted based on an immigration process started before April 30, 2001 and they can prove they were present in the U.S on December 21, 2000.

Practically speaking, this means that some petition or labor certification process must have been filed on their behalf or on behalf of their parent or spouse before these dates. The rules are pretty liberal as to who can benefit. But, as you might imagine, the pool of people who qualify diminishes as the years and days go by.

M-A: Is there a way for people who entered without a visa to adjust status through marriage?

Leopold: No. The law does not permit adjustment even if the green card is based on marriage to a U.S. citizen and there is extreme hardship to the family. If a person entered without an inspection and doesn’t qualify for 245(i) exceptions, they must leave the U.S. in order to apply for their immigrant visa.

M-A: What happens when people are told to go back to their native country, such as to Ciudad Juarez in Mexico to process paperwork at the consulate there? What are the penalties?

Leopold: Anyone who has been in the U.S. for more than six months after entering illegally, or overstaying their authorized period of stay, faces a three or 10 year bar to readmission once they leave. If a person overstays for six months, they will be barred for three years; if they overstay for one year or more, they will be barred for 10 years.

If they reenter illegally after having been removed or after having been in the U.S. unlawfully for more than a year, they will be barred permanently.

However, there are hardship waivers if the immigrant can show that refusal of admission would cause extreme hardship to his/her U.S. citizen or lawful permanent resident parent or spouse. (Note: Hardship to U.S. citizen/lawful permanent resident children doesn’t matter.)

So if the immigrant is married to an undocumented spouse, and they have U.S. citizen or mixed children, the immigrant has no waiver available even if he/she is eligible for an immigrant visa based on employer sponsorship.

There was a case in Ohio years ago where a South Korean boy’s parents were both deported. He was a U.S. citizen, they were not. No waiver available to the parents, despite the obvious hardship to the boy who was left behind without support. Under these circumstances, the government expects the U.S. citizen child to return with the parents or go into foster care.

M-A: So what typically happens in these cases?

Leopold: If there is a waiver available, the immigrant must apply for it abroad. Practically speaking, that means a wait of a year or more for the waiver. And there is no guarantee of approval. The government expects a showing of hardship to the U.S. citizen spouse.

Hardship is more than mere separation; it is a combination of economic, psychological etc. And again, hardship to the children, who may be traumatized by the absence of the parent, just doesn’t matter.

M-A: The families of these people who can’t adjust immigration status – including their U.S. citizen spouses, children – live in a sort of mixed-status limbo. Is there anything that families like these can do to change their situation?

Leopold: Not under the current structure of the law. It effectively bars anyone who has been here unlawfully for more than 6 months. By requiring the person to leave the U.S. to get the immigrant visa, and then barring them for years once they leave, the law includes an ugly Catch-22. You need to leave to get the visa, but once you leave you’re ineligible for the visa for 10 years.

This provision, known as the 212(a)(9)(B) 3/10, and permanent bars, was put into the law in 1997 (under President Bill Clinton) as an incentive for people to depart once their period of stay expired. It was also included as an incentive for people not to enter illegally. But it has done the opposite. Rather than abandon their mixed-status families, immigrants tend to hunker down and hope the law changes. Many of them don’t even know the bar exists, until they seek advice from a lawyer.

M-A: What part in this phenomenon does the family-based immigrant visa system play?

Leopold: The family based system, which allows for the immigration of immediate relatives and other family members, is limited by the adjustment provisions which deny adjustment to most people who have violated or failed to maintain their immigration status.

If an eligible immigrant can’t adjust internally, they must depart to apply for an immigrant visa at a U.S. consulate abroad. Once they depart to apply for the immigrant visa, they can be barred for as much as 10 years based on previous unlawful present.

About David Leopold
Past President American Immigration Lawyers Association (AILA), In-the-Trenches practicing immigration Attorney, Blogger, Activist, Photographer, Educator, World Traveler. All opinions are my own.

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