Seattle Immigration Lawyer Blog

In a few earlier posts, I discussed how the permanent immigration quota system works, or doesn't work because of its impact on illegal immigration. In my recent post, Why Don't They Just Come Legally? - Myths Part II, I mention that two of the causes of illegal immigration are due to there being no lines for legal visas to get into in the first place because there are no categories for certain employment and family categories. And, in cases where there are applicable categories, the lines can be very, very long - decades in some cases. In my post on the Anchor Babies and the 14th Amendment - Myths Part I, now called the "birthright citizenship" movement devoted to repealing the 14th Amendment, I discuss how American born kids can't sponsor their parents or siblings until they are 21, and even then, at least for siblings, they have to endure the quota backlogs. Finally, in an article on the DREAM Act, I showed how the last proposal before Congress added 10 years to the DREAM Act process. As a result, the beneficiaries would have to wait 10 years to become a U.S. citizen before they could even start the process of sponsoring relatives. The sibling quota delays would add another 10-20 years to the process. Well, now the February issue of the U.S. State Department's monthly Visa Bulletin really demonstrates just how bad the quotas can get based on demand and small supply of available green cards or visas.

The term "retrogression" in the Visa Bulletin refers to the quota getting longer or the line moving backwards rather than advancing forward toward being current. For years, ALL of the family based preference categories, which do not include spouses, parents or minor children of U.S. citizens, have been subject to lengthy backlogs, regardless of country of birth. Siblings of U.S. citizens are always the worst, and if the person immigrating is from China, India, Mexico or the Philippines, or the Dominican Republic, the quotas are the worst of all. Starting in January, the family based quota retrogressed for most people in most categories which means demand has increased.

In the employment based immigration context, foreign investors and creme-de-la-creme employees (those that are world renown or hold advance degrees) typically have no backlogs unless the person is from India or China. Everyone else immigrating based on a job requiring limited work experience or a bachelors degree is subject to a quota delay with Indians having the longest wait. Most Indian and Chinese nationals are here on H-1B temporary work visas because of strong hiring trends several years ago, but because demand is high, they have longer waits, and for many of them, their H-1Bs will run out before they reach the front of the line of the quota. Many have already gone home because of better opportunities abroad. Accordingly, many experts view the employment quota backlog situation in America as a cause for concern about an outbound brain drain.

Starting next month, the the February 2011 Visa Bulletin has a new column for people from the Dominican Republic. Evidently, there is high demand by Dominicans but insufficient visas in both family and employment based immigration categories. Permanent residence (green card) levels were set by Congress over 20 years ago according to a complicated formula. A general idea about how the numbers are allocated is described in the The Operation of the Immigrant Numerical Control System. Briefly, visas are allocated by per category limits which are then allocated by per country limits. Then there are rules about spillovers from one category to another. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates. A person's place in line in the quota or backlog is called their priority date, which is established when the government receives the first application type that starts the immigration process in that category.

Continue reading "Green Card Applicants Must Wait Even Longer According to February 2011 Visa Bulletin" »

As Congress and several states take up proposals to repeal the 14th Amendment citizenship provisions because of fears of an "alien invasion", anti-immigrant activists continue to incorrectly charge that individuals from abroad want to invade our country by breaking the law. Myth: Most of the people here illegally just don't want to follow the law. The frequent refrain, or more likely, a quip, is "why don't they just come legally or get in line?" Reality: Most people would come legally if they could. In my many years of immigration practice I have rarely, if ever, met people who wanted to come to the U.S. illegally. Almost all would have applied for visas had there been a proper category or a number. Others did apply for visas and were rejected.

There are several reasons people don't just come legally or wait their turn in line: there are no lines to get into because there are no visa categories for the situation; the line is too long because of insufficient numbers of available visas; consular and border officers deny visas or entry without possibility of review; lack of options/desperate situations (e.g. fleeing persecution, war, calamity); deceptive and abusive situations (e.g., smuggling); and our laws or foreign policies sometimes fail to acknowledge the human condition to want to protect and be with family members, and to earn a living to feed one's family.

1. Lack of Appropriate Categories: Many individuals here without authorization are in low-skilled or semi-skilled occupations. Yet, we don't have any appropriate visa categories for dish washers, gardeners, home care workers, maids, or construction workers, to name a few. We no longer have visas for many nursing occupations despite a shortage of nurses. We do have an H-1A agricultural worker program that is extremely difficult for employers to use. Farm workers must reapply every time they move from one crop/employer to another. There is no permanent work visa for farm workers. The various government agencies involved do not always approve visas on time for harvests or packing seasons which can change due to unpredictable weather conditions. Although we have a H-2B visa category that could accommodate low or semi-skilled workers, it has an annual cap in the number of visas available, and every job must be short-term temporary work such as seasonal, peak load, or temporary substitution. There is no temporary visa category for long-term work in the low-skill occupations mentioned above.

In the family based area, there are no categories for grandparents to sponsor grandchildren or for aunts and uncles, cousins and the like to sponsor each other. Also, there are no categories for U.S. citizens or green card holders to sponsor their gay partners. I mentioned in my earlier post, Anchor Babies and the 14th Amendment - Immigration Myths Part I, that it is a complete myth that anchor babies (born in the U.S.) can sponsor their parents and siblings. This is not true at least until the children turn 21. The line gets even longer when you add sibling quota backlogs and other delays due to immigration law issues for people here without authorization.

Continue reading "Why Don't They Just Come Legally? Myths - Part II" »

The anti-immigrant rhetoric about the DREAM Act lately is disingenuous, to say the least, and completely false in other cases. Unlike experienced immigration lawyers, most legislators just don't have the day-to-day experience of implementing or using the laws they create, so they may not fully appreciate the real impact the laws they enact have on real people, families, employers, and the community at large. I show below how some of the anti-DREAM Act arguments being made by certain legislators and their supporters just don't stack up to the facts. As our colleagues at the Immigration Policy Center say, there's an appalling lack of "truthiness" by some legislators, to use a term coined by Stephen Colbert of Comedy Central.

1. Myth: The DREAM Act is Amnesty.
Reality: Amnesty is forgiveness for a wrong or past offense. DREAM Act is a process for legalizing the status of young people who were brought here at a young age through no fault of their own. We do not normally hold children accountable for the acts of their parents. DREAM Act has many steps and requirements for applicants to follow that will take years to obtain in order to earn legal status. Dreamers must meet certain age and application requirements, complete high school or a GED, attend higher education or serve in the military, pay of exorbitant filing fees, prove all taxes were paid, and pass English, government and civics exams. There is nothing forgiving about the process. Many people will be excluded because of the extreme requirements. Serious criminal histories will not be forgiven.

2. Myth: DREAM Act will open the floodgates to mass chain migration.
Reality: In my earlier post on Anchor Babies and the 14th Amendment, I gave specific examples of how long it takes for a U.S. citizen child to sponsor a parent or sibling from Mexico, where the quota or backlog is really long, and how long it takes to sponsor a parent or sibling from Canada, where the quota is the "shortest". Now, add the DREAM Act to the mix, and it's even longer for everyone. The DREAM Act, as passed by the House and to be voted on by the Senate, makes this program last for 13 years before a Dreamer becomes a U.S. citizen. Did you get that? 13 years! Applicants must spend 10 years in nonimmigrant temporary status, followed by three years of permanent green card status before becoming U.S. citizens. Only then can a U.S. citizen Dreamer sponsor a parent or sibling, and the Dreamer must be at least 21 years old.

Taking my examples from the earlier blog post, which used the State Department's September 2010 Visa Bulletin (monthly report of the quota and visa availability worldwide), the results of this "massive chain migration" will be as follows:

a) U.S. citizen Dreamer sponsoring a parent from Mexico: The category is "Immediate relative" (not subject to any quota). It will take 13 years of DREAM nonimmigrant status plus another 10 years if the parent lived in the U.S. illegally for a year or more (whether the parent entered illegally or arrived with a visa and overstayed by a year or more). This is because of the bar to adjusting status in the U.S. if the parent entered illegally or had unauthorized stay. As a penalty, he or she must process the visa abroad. Leaving the U.S. triggers the 10-year bar to re-entry, meaning the parent must reside abroad for 10 years before coming back to the U.S. with a green card. (There are rare exceptions to the 10-year bar.)

b) U.S. citizen Dreamer sponsors a Mexican Sibling: This is the fourth preference category which is subject to the quota. It will take 13 years from DREAM eligibility to sponsor the sibling, followed by a 16-year quota delay, plus 10 years living abroad if subject to the 10-year bar. Neither the Mexican parent nor sibling is eligible for a waiver of the bar because the U.S. citizen Dreamer adult child or sibling is not a qualifying relative for the waiver.

c) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) parent: The parent is an immediate relative not subject to the quota. But, if the parent entered illegally, it will be 13 years to sponsor the parent and another 10 because of the bar to re-entry as described above.

d) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) sibling. Again, fourth preference, 13 years for Dreamer to sponsor, followed by 9 years quota delay, followed by 10 years if subject to the 10-year bar.

If the immigrating parents or siblings live overseas and were never in the U.S. unlawfully for six months or more, they will not be coming to the U.S. for at least 13 years for the parents, and another 16 years if a Mexican sibling or another 9 years if a Canadian sibling. (All of the above assumes Congress has still not removed the bars, and has not changed the annual visa allocations by country so quotas remain similar to what they were back in September 2010.)

In sum, we're looking at some middle aged to elderly Dreamers becoming sponsors of elderly parents and siblings, who by then will prefer to remain in their home countries. Or, they could die waiting.

Continue reading "Anti-DREAM Act Rhetoric: Busting the Myths" »

Anchor Babies - The Myth

"Anchor Baby" is a derogatory term and a figment of imagination. Anchor for what? Nativists believe that immigrants come to the US to "drop babies" so they can bestow an immigration benefit upon the parents. This is pure nonsense and not the law or fact! There are no immigration categories in our present system that allow a U.S. born child under 21 to sponsor his or her parents! Under current law, whether the parents entered legally or illegally, they will have to wait at least 21 years for a green card if sponsored by the U.S. citizen child. Similarly, a U.S. citizen cannot sponsor a sibling until the citizen is 21 years old.

How Many U.S. Citizen Babies are Born to Immigrants in the U.S.?

An August 11, 2010 Pew Hispanic Center study, "Unauthorized Immigrants and Their U.S.- Born Children", reports that only 8% of children born in the U.S. in the year 2008, or 340,000 of 4.3 million babies, had at least one parent without documents, while 16% of U.S. citizen children born in the U.S. that year had one or more parents who are immigrants with legal documents. Overall, the Pew Hispanic Center estimates there are 4 million U.S. citizen children living in mixed status households out of 8.8 million mixed-status families in the United States.

According to a Pew Research Center for People and the Press article, "Obama's Ratings Little Affected by Recent Turmoil", Part 3, most of out-of-status mothers with U.S. born children have been here at least a year, and more than 50% have been here for five years or more without status. This means that most immigrants who have their babies in the U.S. do by so happenstance, not as the primary reason for coming to the U.S. The only exception may be people who live along the U.S.-Mexican border who have easier access to quality U.S. medical facilities for giving birth. A September 3, 2010 Boston Globe article, "'Birth Tourism' a Tiny Portion of Immigrant Babies", mentions Demographer Douglas Massey of Princeton University who has researched Mexican immigration trends. He says he has never met anyone who came to the US specifically to have a baby here, which mirrors the experience of most immigration lawyers. This is certainly consistent with this author's experience in immigration law.

The "anchor baby" argument, or the "birthright" movement, is intended, presumably, as a theory to reduce illegal immigration. But, if we repealed the 14th Amendment (see below) or otherwise prohibited U.S. born children from being American citizens at birth, according to a September 2010 Migration Policy Institute study, "The Demographic Impacts of Repealing Birthright Citizenship," between 2010 and 2050, we would actually double the number of people without status from 10-12 million to 25 million because the children of those children born in the U.S. would create yet another generation of children growing up in America without status or rights.

Other Considerations of U.S. Born Children in Immigration Law

Even when the U.S. citizen child turns 21, the sponsored parent or sibling may have to wait years more to immigrate or might not be able to immigrate at all. This is because of two main factors - quota delays for siblings of U.S. citizens, and the three and ten-year bars that require many sponsored relatives who entered the U.S. illegally to complete processing of a green card at a U.S. Consulate abroad. The act of leaving the U.S. to visit the Consulate can trigger the bars to re-entry despite otherwise having a way to immigrate legally. Those who are subject to the bars must first obtain an "extreme hardship" waiver to avoid waiting the three or 10 years abroad. Waiver approvals are unpredictable. Quota delays and the three and 10-year bars are why most people without legal status in the U.S. cannot immigrate today despite having an employer or family sponsor.

Continue reading "Anchor Babies and the 14th Amendment - Immigration Myths Part I" »