Top 10 immigration facts every attorney should know.
By Linda A. Brandmiller
Immigration is a topic potentially impacting all practice areas.
Immigration laws, rules, and policies are in flux, but there is some
basic information that every lawyer should understand about immigration
and the immigrant community.
First, a word about words: Words matter and framing the immigration issue is important. Although the term “alien” is the technical term in the federal immigration code,1 the term “illegal alien” is not and it is nearly always deliberately negative in contemporary usage. A person is not illegal—an act is illegal. It is not a crime to be in the country without permission—it is a civil infraction. Therefore it is incorrect to use the terms “illegal alien” or “illegals,” which are derogatory terms meant to further marginalize this population. Some recommend the terms “undocumented” or “here without permission” to describe someone in the U.S. without legal status.
10. Generally, you have to be connected to someone to get legal status. Either an immediate family member with legal status (parent, spouse, U.S. citizen sibling, or U.S. citizen child over age 21) or employer with a specialized need may petition the immigrant. Once a petition is filed for an immigrant, he or she is generally considered “in line.”2 This “line” is dictated by relationship to the citizen/resident as well as country quotas, which in large part have not been updated in decades. The monthly Department of State visa bulletin advises which applications are being adjudicated that month in each country with some applications having more than a 20-year wait.3 Even then, for most immigrants, there is no one available to petition them therefore there is never any “line” for them to get into.
9. Marrying a U.S. citizen does not automatically grant legal status. An immigration application for an immediate family member is complicated and can take years to get approved. Additionally, the past of the immigrant is never erased; so all entrances, exits, immigration issues, and criminal problems (even as a juvenile) affect this process. If the immigrant’s last entry into the U.S. was without permission, he or she must leave the country (unless he or she qualifies under prior amnesty laws that ended in April 2001 or the petitioner has a U.S. military history) in order to finish his or her application through consular processing. This is complicated because if the immigrant is over 18, he or she will automatically receive a penalty of either three or 10 years4 for the time spent in the U.S. without permission and must either wait these years in his or her home country or, depending on individual circumstances, may apply for a waiver (though he or she still must leave the country to complete the application process).5
8. Immigrant victims may qualify for legal status. Spouses or children of U.S. citizens or residents who suffer from domestic violence may qualify to “self petition” and achieve legal status.6 These include same-sex marriages and common law marriages and, for a limited time, the victim may qualify even after divorce or death of the abuser. Practice pointer for family lawyers—a reference to domestic violence in a divorce decree for an immigrant may provide important documentation to assist in getting legal status as a result of the abuse. An immigrant victim of a serious crime in the U.S. who assists law enforcement in the investigation or prosecution of the crime may also qualify for legal status through a U visa.7 A law enforcement certification is required and may be signed by federal, state, or local law enforcement; prosecutor offices; judges; family protective services; the Equal Employment Opportunity Commission; Department of Labor; and other investigative agencies. Practice pointer—even indirect victims of crime in the U.S. may qualify for a U visa. So the undocumented parent of a U.S. citizen/resident child who suffered victimization in the U.S. may qualify for legal status. Victims in the U.S. of human trafficking may also qualify for legal status through a T visa.8 Note that although smuggling and trafficking are not the same, it is possible for a smuggling case to turn into a human trafficking case based on circumstances.
7. The system isn’t always fair nor logical. Many things influence individual immigration cases, including marital status, criminal history, and changes in country conditions or family circumstances, as well as changes in law and policy, judges, and U.S. Immigration and Customs Enforcement. For example, it is possible for siblings in the same family to have mixed immigration status depending on the year they were born and the law of citizenship at the time.
6. An immigrant may be a U.S. citizen and not even know it. U.S. citizenship can either be acquired (at birth) or derived (on a date). Under certain circumstances, children may acquire U.S. citizenship from their parents even if they were born abroad. These citizenship rules changed many times over the years and are dependent upon which parent has legal status, whether parents were married at the time of birth, and length of time the parent lived in the U.S. prior to the birth. Practice pointer for criminal attorneys—do not automatically presume that your client who says he or she has no legal status is not a U.S. citizen. It is possible, and it can be rewarding for an immigration practitioner to find a “hidden U.S. citizen” and meet the necessary requirements to prove legal status.
5. Abused, abandoned, or neglected children may qualify for legal status. If a child (under age 21 in the federal code) is abused/abandoned/neglected (even in their home country) and is unable to reunify with at least one parent, a “suit affecting the parent-child relationship” state court order from a judge can be used for the child to self-petition (the same as the Violence Against Women?Act) in order to obtain legal status.9 Practice pointer for family lawyers—never do an adoption for an undocumented child before checking with an immigration lawyer. It is nearly impossible for an adoptive parent to give that child his or her legal status and the rules are very specific involving the Hague Convention and other complicated requirements that must be met prior to the child entering the U.S.10
4. A lawful permanent resident, or LPR, can be deported. Once eligible, all LPRs need to apply for citizenship if they qualify. Although LPRs are in the U.S. with permission, they may still be deportable or not allowed to return to the U.S. after a trip abroad and do not have all of the constitutional protections of a U.S. citizen. Tens of thousands of U.S. military veterans who have served our country have been deported after suffering post-traumatic stress disorder and having drug or criminal complications in their history.
3. Years in the United States does not
equal legal status. There is no affirmative application for
immigrants to submit because they have been in the U.S. a specific
number of years. If immigrants find themselves in deportation
proceedings, they may qualify for cancellation of removal if they have
been in the U.S. no less than 10 years, can show good moral character,
have not been convicted of a serious crime, and establish that hardship
to a U.S. citizen or resident family member would result from their
2. Even undocumented immigrants have rights. Under HB 1403, otherwise known as the Texas Dream Act, undocumented immigrant students qualify for in-state tuition if they resided in Texas for at least three years before graduating from high school. Immigrants are also afforded equal protection and pay under the law.
1. What our client does not tell us may significantly impact his or her case. When dealing with the undocumented immigrant, his or her interactions with us may be influenced by language, culture, embarrassment, and fear. Even though it is a sensitive issue, it is important to know the immigration status of a client because of the many options available. When in doubt, contact an established immigration attorney. The State Bar of Texas Laws Relating to Immigration and Nationality Committee is a great reference.
Bonus—Possible ways to prepare for “reform.” Undocumented immigrants should not leave the country. They need to keep all receipts and pay taxes (regardless of immigration status, they get a free individual taxpayer identification number from the IRS to submit their taxes)12 in order to document time in the U.S. and good moral character. They need to learn to speak English and avoid crime. If there is someone in the family who can petition them, it should be done now before possible additional restrictions to family-based immigration are enacted.TBJ
LINDA A. BRANDMILLER
is an immigration attorney in San Antonio. She focuses exclusively on family-based immigration with an emphasis on serving victims of crime, domestic violence, human trafficking, and abused/abandoned/neglected children. Brandmiller is chair of the State?Bar of Texas Laws Relating to Immigration and Nationality Law Committee.