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.
The U.S. Department of Homeland Security (DHS) has been forced to delay accepting expanded Deferred Action for Childhood Arrivals (DACA) applications after a federal district judge temporarily blocked both it and the Deferred Action for Parents of U.S. Citizens and Legal Permanent Residents (DAPA) program. The expanded DACA program was to take effect on February 18, 2015. DAPA was slated to begin in May.
U.S. District Judge Andrew Hanen, in Texas, ruled late Monday night to block executive actions Obama took late last year to shield as many as 5 million undocumented immigrants from deportation. Judge Hanen halted Obama's executive action, ruling that the administration had failed to comply with the Administrative Procedure Act, which calls for the White House to afford a longer notification and comment period before taking action. The ruling was issued in a lawsuit filed by 26 U.S. states seeking to bar the Obama Administration from certain executive actions on immigration.
The DHS immediately issued a statement confirming that they intended to appeal the decision, but would comply with it while an appeal is pending.
Secretary Johnson stated that
"...the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned. Until further notice, we will also suspend the plan to accept requests for DAPA.
The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do."
The program extends to NYC residents who are not in lawful immigration status, prompting some criticism from conservative commentators including false claims that the ID cards grant voting rights.
Instructions on how to apply for the cards are on the IDNYC website, and include a list of the required documents to prove identity and residence. The application forms are available in over 25 languages, including Spanish, Russian, Chinese, Urdu, and Hebrew. The cards are free for anyone applying in the first year (during 2015), and are valid for 5 years.
Benefits of the card, as listed on the official FAQs, are:
You can use the card to enter all City buildings, such as schools, and access City services. Police officers will accept the IDNYC card as valid identification. This is important because if you do not have identification with an address, in instances where you would otherwise be issued a summons, the police officer will bring you into the police station instead.
The majority of the publicity surrounding President Obama's Executive Action last week is concerned with the relief it gives to undocumented immigrants. Contrary to some reports, the proposals do NOT offer any amnesty or path to citizenship, and are just temporary measures.
1. DACA (Deferred Action for Childhood Arrivals) Expansion.
In June 2012, President Obama announced that some undocumented people, who had come to the US as children, would not be deported. These people are sometimes referred to as "Dreamers" after a proposed bill called the Development, Relief, and Education for Alien Minors (DREAM) Act.
Obama's Executive Action expands the relief available as follows:
The USCIS website explains the former requirements for DACA.
All except the first and third criteria still apply.
USCIS may begin accepting applications approximately 90 days from November 20, 2014
2. Relief for Parents of Permanent Residents and Citizens
The most controversial element of Obama's proposals allow for the undocumented parents of US citizens or permanent residents to get work authorization and relief from deportation for 3 years. Applicants will need to register, submit biometric data, pass background checks, pay fees, and show that their child was born before November 20, 2014.
The requirements are:
USCIS may begin accepting applications approximately 180 days (6 months) from November 20, 2014.
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.