Unlawful Presence – Enter Without Inspection
One of the most frustrating things an Immigration lawyer can encounter are limited options for a client. As a Chicago based immigration attorney, I take my job very seriously and my heart is with our clients and their cases. A common story that we hear is: A client walks in the door, usually from Mexico, they were brought here to the United States illegally as an infant by their parents. The parents did not have a visa and were not inspected by a Customs Border Patrol Agent at the border. They simply sneaked across the border in some capacity and did not request entry with a visa such as a K1 fiancée visa, H1b visa, TN visa, or other common type of visa. So because the parents did not have a visa, obviously the child did not have a visa either. Years go by, the family lives and works in the US, the children go to school, make friends, have dreams, and all in all are living just like other Americans except they do so without a legal status and constantly need to look behind their shoulder not get caught. They lose identity with their home country as America has become their real home. Then the child turns 18, and under current Immigration Laws, something magical happens. The child is now an adult. The significance of this is that unlawful presence starts to kick in. The rule is if a person (a.k.a. alien) stays/lives in the United States without any valid visa for a certain period of time or enter the United States without inspection at the border, he/she has committed “unlawful presence”. For a hundred and eighty (180) days and less than a year of unlawful presence in the U.S., the alien is subject to a 3 year bar from entering the U.S. For one (1) year or longer of unlawful presence in the U.S., the alien is subject to 10 year bar from entering the U.S. Notice they are no longer a child at 18; they are an alien in Immigration eyes. I know that when I was 18, I was focusing on graduating high school, looking forward to college, training for a career, making new friends with the American Dream ahead. I would not have been conscience that because I turned 18 I am starting to accrue unlawful presence or some other type of law that might kick in. It is just not on the mind of an 18 year old, and really, why should it be.
3/10 year Bar
Ok, but the story goes on. The child goes to school, works, does what other normal kids their age do. They might graduate college and then realize, uh oh, I don’t have authorization to work. Now what? Well, under current immigration laws they may be eligible for an H1B visa for them to work legally, but the old statutory bar (3/10 years) is going to kick in. So now they can’t work, at least legally. Or they may have already have been working, probably under a fake social security number. Then they meet the person of their dreams, who is likely a U.S. Citizen. They may eventually have children, or their spouse may say, lets get you legal. Let’s get your citizenship, surely it’s only a matter of filling out some forms. Well, not so fast, they are not eligible for a marriage green card or adjustment of status, well they may be eligible but they’re not admissible, due again to you guessed it, the statutory bar based on the “unlawful presence” inadmissibility ground.
Immigration says, well you shouldn’t have been in the US to begin with, like a child is going to be say, hey Mom and Dad, please don’t take me across the border. Or like the child is going to say at 18, alright Mom, Dad, family, friends, I’m going back to Mexico. I have no family or friends back there, no job, no school, but maybe see you sometime in the future. I’m not quite sure if I can make it back in the US to see you, and if you want to stay in the US you definitely can’t leave to come and see me.
Extreme Hardship Waiver I-601 application
So, after living some version of the above description, the Alien may come into our office and say, what kind of forms do I need to prepare. Let’s assume that they married a US Citizen. We would ask them a series of questions, ask if anything has ever been filed for them in the past. Likely no. We then suggest, well you might be eligible for an I-601 Extreme Hardship Waiver. We have to prove that it would cause “extreme hardship” for the US Citizen spouse to leave the US and go to your home country, likely Mexico. The test in so many words is, the more complicated your life, the less likely you’re going to be able to just leave, hence, extreme hardship. But here’s the catch, if USCIS does not agree that you have extreme hardship, whether you are in Mexico or we file here in the US (i.e. if the new proposed I-601 procedural law regarding Waiver of Inadmissibility for Unlawful Presence passes), you’re likely going to be separated. So we can’t really blame.
The blame game
So who can we blame? Can we blame the parents for taking the child in the US illegally? Maybe, yes likely a little bit. As desperate as their circumstances may or may not have been, they did break the law. If I were in the same situation, I may have broken the law as well. As an Immigration Lawyer, I don’t want to condone breaking the law. It also undermines people that make the effort to try and comply with the law and do things the right way. However, what if these persons have no alternatives, again, I might do the same thing if I had no other options.
We definitely can’t blame the child who now turned Alien as mentioned earlier.
Can we blame Congress? Yes, definitely. Should there be a Dream Act? Maybe. Should there be a guest worker program? Maybe, more likely yes. Would the current laws such as H1B Visas, E1 or E2 visas still be available to these persons? Yes, they should be. And so should other great categories such as EB 5 Investor Green Cards, Marriage Green Cards, Fiancée Visas and other relevant family based green cards. This article is not proposing anything. My job is to be an Immigration Attorney, an advocate under the laws that exist. Congress on the other hand has the job of making laws, laws that are relevant for the times. So my opinion, congress gets my vote for getting the blame of not having relevant laws for the times.