Legal immigration complicated, lengthy: Lawyers

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Monday, February 13, 2012

The often-heard argument in the heated debate about illegal immigration goes something like this:

If Mexicans want to work in the United States, they should play by the rules and enter legally. Or if they are in the United States illegally, they should go to the back of the line and wait for their numbers to be called.

"People say, 'Why don't they do it the legal way?'" said Rene Bue, president of the Latino Service Providers Coalition, a local group that connects Latinos with information and services to improve their lives. "But if you live in Mexico, it is not as simple as people think."

Most Mexican immigrants gain legal entry to the United States through family-based petitions, a process that can take years or decades, Janesville attorney Pablo Carranza said.

The family way

To be eligible, a person must be a close relative of a U.S. citizen or of a legal permanent resident. The U.S. relative files an immigration petition for the family member with U.S. Citizenship and Immigration Services.

Once the agency approves the immigration petition, which can take several months, the immigrating person must apply for a visa from the U.S. State Department, Carranza said.

For some family members, the process can take a long time because of supply and demand.

The U.S. State Department allocates the same number of visas every year to people in every country around the world to immigrate to the United States. This year, the agency allowed 25,620 visas for each country. But applications from some countries—including Mexico, India, China and the Philippines—far outnumber the available visas.

Of those limited visas, the law segregates family members into different categories, called "preferences," which have different priorities. For example, the spouse of a United States citizen has priority over siblings of the same citizen.

"Once the visas are used up, there is a waiting list for the following year," explained Marilu Cabrera of the U.S. Citizenship and Immigration Services, Chicago.

Over the years, the requests have piled up.

"The number of available visas has not kept pace with the number of Mexican people who want to immigrate," Cabrera said. "The wait can be 10 or 15 years."

The February Visa Bulletin of the U.S. State Department shows that for some relatives of permanent legal residents, the agency is now accepting applications that date back 20 years. For example, applications from unmarried sons and daughters date to December 1992.

"I talk to people regularly who have applications dating from the 1990s and are still waiting," said Laura Fernandez, an immigration lawyer in Milwaukee.

For example

Fernandez cites two examples to show how the system works differently, depending on the applicant.

In the first example, U.S.-born John goes to Mexico and meets a Mexican woman in Cancun. She has no criminal record and has never been in the United States illegally or otherwise. They marry, and John returns to the United States to petition the Bureau of Citizenship and Immigration Services for her permanent residency. The petition might take three months for approval, and it might take another three months to process her visa. She could be a lawful permanent resident in six months in a best-case scenario, Fernandez said, because the law gives high preference to the spouse of a U.S. citizen.

The second example is more complicated.

Maria, a permanent legal resident in the United States, wants to petition for her brother to become a legal resident. He is living in the United States after entering illegally years ago. Maria petitions for her brother. But because he is Mexican, the U.S. State Department will not get around to considering his visa for about 15 years, based on the number of applications ahead of him.

When the State Department finally gets to Maria's brother, the law requires him to apply for the visa in Mexico. But when he steps outside the United States, he invokes a 10-year ban on being able to apply for the visa because he has been in the United States illegally. Theoretically, he can apply again under the same petition at the end of 10 years. In all, it could take him 25 years, Fernandez said.

"I could give you 25 examples with 25 different timelines," she said. "The more you understand about the law, the more complicated you realize it is. It is impossible to generalize the situation.

"It would be fair to say that it can take 20 years for a person to get their residency through a family petition," Fernandez said.

U.S. citizens can submit family petitions on behalf of their spouses, their children, their siblings and their parents.

Lawful permanent residents can petition for their spouses and unmarried children.

If a Mexican has no close family member who is a U.S. citizen or a permanent legal resident, he or she has no way to take advantage of family-based immigration.

Carranza called immigration "a world of its own."

For six years, he has accepted immigration cases, including ones involving deportation. He understands that immigration law often gets stuck somewhere between policy and politics.

His most common phone call comes from people who say: "I am in the United States without papers, and I want to know what I can do."

Another common call comes from a husband or a wife, who says that "neither of us has legal status, but we have children who are born here. What should we do?"

Children born in the United States are automatically citizens, regardless of their parents' status.

Carranza explains their options, which involve a cobweb of criteria.

"Immigration law has created so much uncertainty," he said.

"It has raised the stakes so high, and the odds are that people will not be able to immigrate in a realistic time frame … For the vast majority, there is no legal way for them to stay if they are already in the country illegally."

Carranza keeps "Kurzban's Immigration Law Sourcebook" on his desk to help him navigate the complex immigration system. With more than 1,300 pages, the book is only an outline of immigration procedures.

Christine Neumann-Ortiz, executive director of Voces de la Frontera, an immigration-rights group in Milwaukee, called the immigration system outdated and dysfunctional.

"In countries like Mexico, where we share a long history, there is no recognition that we need a higher number of visas," she said. "Before 1996, we used to allow people who were waiting for family visas to live and work in the United States. Then, it was eliminated. Now, people are waiting 10, 15 or 20 years to get their paperwork processed."

Entering for work

A second legal way toward permanent residency in the United States is through employment. Almost all employment-based admissions are allocated for highly skilled people and require sponsorship by a U.S. employer, who is offering the job.

Many Mexican workers are classified as "unskilled," and the United States allows only a limited number of low-wage workers into the country who want to immigrate permanently.

Seeking asylum

A third route to permanent residency is through refugee or asylum status. The president and Congress determine every year how many people will be admitted and their countries of origin.

People who have been persecuted or may be persecuted in their home countries because of race, political beliefs or membership in particular religions or social groups qualify in this category.

Some Mexicans have been granted asylum, but the number is small, the U.S. State Department reported.

Last updated: 1:36 pm Thursday, December 20, 2012

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