Have you ever heard a variation of this?
Every immigration lawyer has heard it multiple times. Here are some explanations.
They are illegal, so they are criminals
Being in the US illegally is not necessarily a crime. Entering without inspection by an immigration officer, and re-entering after being removed, are crimes punishable with up to 6 months (first offence) or 2 years (2nd offence) in prison and minor fines.
About 40% of undocumented immigrants came to the US legally, but stayed longer than legally permitted. This overstay is a civil violation, not a criminal one. If you have ever driven over the speed limit, got a parking ticket, been creative on your tax return, etc, you have committed more crimes than someone who just overstayed a visa.
Why can't they get in line, like everyone else?
(Spoiler: there is no line for them)
It is much more difficult to immigrate to the US than most people realize. Many people believe that immigrants could immigrate legally if they wanted to. In fact, the opposite is true and immigrants are usually undocumented because they have no way to get legal status in the US.
Legal immigration almost always requires an employer or a family member to "sponsor" the immigrant. Most people come on nonimmigrant (temporary) visas initially, and later move to permanent residence (green cards). With very limited exceptions, a person cannot come to the US to work without prior immigration approval, and this approval must be based on an employer’s sponsorship.
Even if the worker has an employer to sponsor them, they must fit into strictly-defined categories of workers. These visa categories are very biased in favor of professional-level employees, or those with exceptional ability (athletes, scientists, performers, etc). There is no immigration category for the typical foreign worker with no third-level education or exceptional skills.
There are limited visas available for seasonal workers, but these still require a petitioning employer and are limited in numbers and time. In addition, the processing time can be 6 months or more. Employers often cannot predict the number of seasonal workers they will need that far in advance.
If you have a family member to sponsor your move to the US, you may be in luck….. or maybe not so much. If you are the spouse, parent or child of a US citizen (“immediate relative”), you may be able to move to the US in less than a year. Yes, even if you are married to a US citizen, you cannot live with your spouse until you have gone through the multi-step immigration process (unless you have an independent reason to legally live in the US, e.g. your own work visa).
If you are not an “immediate relative”, the green card process takes 3 to 22+ years, depending your relationship and your nationality. If you are the Chinese spouse of a permanent resident, your wait time is about 3 years now. If you are the Filipino brother of a US citizen, the wait is 22+ years. If you are the Venezuelan grandson of a US citizen, it doesn’t matter how difficult your life in Venezuela is right now, Grandma cannot sponsor you to come to the US.
Why can't they come legally, like my ancestors did?
(Spoiler: because it was much easier back then)*
Immigration has changed dramatically since many of your ancestors came here. In fact, there is a good chance that most people who immigrated over 75 years ago would not be admitted today.
If your ancestors came before 1882, there were no immigration laws to break so everyone came here legally. If they came before 1924, there were so few immigration laws that it was still difficult to come here illegally.
In the 1880s, legislation was passed aimed at limiting immigration – but unless you were Chinese, intellectually disabled or likely to become a public charge, you were sill welcome.
It wasn’t until 1892 that the US government started inspecting people who arrived in the US. The first, and best-known, of these inspection stations was Ellis Island. It was still very easy to pass the inspection. About 10,000 people passed through Ellis Island every day at its peak, and 99% of those were permitted to stay. Between 1900 and 1920, the US admitted over 14.5 million immigrants.
Immigration restrictions really started with legislation in 1921 and 1924, and has become increasingly more complex since then. Even in the late 1950s, it was much easier than today, however. My 82-year old father came from Ireland to Chicago to work (temporarily) in 1958. He got the equivalent of a green card just by applying directly at the US consulate, passing a cursory medical exam, convincing them that he wouldn’t become a communist and proving that he could support himself (he had funds for a week!).
* And are you sure your ancestors came legally??
Many immigrants who came here illegally over the years have benefitted from the various amnesty-type relief measures available. Maybe Granddad didn’t come legally after all, but was granted an amnesty…..
Don’t they have anchor babies so they can stay here?
No – unless this is a VERY long-term plan.
Anyone born in the US is automatically a US citizen. However, having a US citizen child does not automatically grant any right to the child’s parents to live in the US.
A US citizen child can petition for (“sponsor”) her parents to become permanent residents..... but only after the child turns 21. Up to then, an undocumented parent has no legal right to remain in the US simply because they have a US citizen child.
You can see that most people don't stay in the US illegally because it's just too much trouble or takes too much time to get the correct paperwork. They will never qualify, no matter how long they wait.
For more information on this topic, see these articles from the American Immigration Council:
 To get an idea of how difficult it is for a foreign national to move to the US to work, see the wizard here: www.martinvisalawyer.com/uploads/3/8/6/0/38600843/visa_wizard.pdf.http://www.martinvisalawyer.com/uploads/3/8/6/0/38600843/visa_wizard.pdf.
We have been hearing disturbing reports (e.g. here) of US Lawful Permanent Residents (LPRs) being coerced into relinquishing their green cards by immigration officials. Please do not feel compelled to sign away your rights. We understand that it is a very stressful time for many immigrants now, and that immigration officers can be intimidating and even frightening. However, you have the right to refuse to sign the I-407 (Record of Abandonment of LPR status) and refusing to sign the form should have no negative consequences.
Can I "lose" my permanent residence status by being outside the US for 6 months?
A person does not automatically lose their permanent resident status just because they have been outside the US for a particular length of time. Immigration regulations do state that if an LPR is outside the US for one continuous year, there is a presumption that permanent residence has been abandoned. However, DHS (Department of Homeland Security) can decide that a person has abandoned their permanent residence after they have been gone for less than a year. The key is whether the person intended the stay abroad to be temporary, not the length of time outside the US.
Evidence of intending not to reside permanently in the US include spending long periods outside the US without maintaining a US residence, declaring yourself to be a "nonimmigrant" on US tax returns, or, in more extreme cases, never living in the US to begin with.
If you want to live outside the US for 6 months or more, it is critical that you can show your intention to return to the US. This intent can be shown by as many of the following as possible:
1. Continuing to file US tax returns;
2. Keeping a house or other residence here;
3. Putting furniture and other belongings in storage rather than selling them;
4. Having some immediate family members staying in the US;
5. Definite plans to return to a job or studies in the US;
6. Maintaining memberships in clubs, church groups, etc. in the US.
What if I need to stay abroad for over a year?
Immigration regulations require invalidation of your green card if you have been outside the US for over a year. We recommend getting a reentry permit if you will be on an extended stay outside the US of a year, maybe even less in the current political climate. A reentry permit allows a permanent resident or conditional resident to apply for admission to the US upon returning from abroad during the permit’s validity, without having to obtain a returning resident visa (see below) from the U.S. Embassy or consulate. A reentry permit does not guarantee admission into the United States. Aliens with reentry permits are still subject to inspection at the port of entry and may be denied admission if they are inadmissible.
Reentry permits are generally valid for 2 years from the date the reentry permit was issued. A 2nd reentry permit might be approved for another 2 years, and thereafter they are approved for one year at a time. You should apply for this benefit before leaving the United States. Ideally, you will file at least a few months before you leave, to allow time for the biometrics appointment to be scheduled before you travel.
What if I didn't get a re-entry permit and have been abroad a long time?
An LPR who has remained outside the US for over a year without a re-entry permit, or whose re-entry permit has expired, needs to apply for a Returning Resident Visas (SB-1) at their nearest consulate. To qualify for returning resident status, you will need to prove that you:
Can they force me to sign an I-407?
A person who has not signed an I-407 (or otherwise relinquished permanent residence, see Yakou) remains an LPR until an immigration judge decides that they have lost the LPR status. If you are asked to sign an I-407 and refuse, you should be issued with a Notice to Appear (NTA) before an immigration judge who will decide the matter. Your immigration lawyer needs to show that it is more likely than not that you intended to stay an LPR.
If you have been outside the US for a long time and are questioned by immigration about your LPR intention, please describe your ongoing ties to the US. These could be work, family, owning a house, etc. You should be able to explain why you were outside the US for a long time, e.g. you were transferred abroad by your company or you were caring for a sick relative. I volunteered at DFW airport a few days ago, and an elderly Sudanese woman was questioned about her LPR intentions. She had fallen ill while visiting Sudan, so she had to stay longer than she intended. She was eventually admitted as an LPR, but the delay was worrying.
If your green card is confiscated, you must be provided with alternative evidence of your LPR status, such as an I-94 and/or passport stamp that says "Evidence of Temporary Residence."
Please contact Elaine Martin, immigration lawyer, if you have any questions.
The U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet related to the automatic extension of certain employment authorization documents (EADs) described in the recent regulation on high-skilled workers. The fact sheet clarifies, “Employees with a timely filed EAD application that is still pending may qualify for the 180-day automatic extension, even if that application was filed prior to the effective date of this rule (Jan. 17, 2017).”
See the earlier post explaining the new rules in details here.
If you have any questions about this matter, please contact Elaine Martin, immigration lawyer.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.