© Attorney Farhad Sethna, 2019
Time after time, in discussing immigration with fellow citizens, even lawyers, I have heard the question raised:
Why can’t “they” become legal?
The “they” of course refers to aliens in the United States, whether documented or undocumented. Another typical question is “why can’t they just become citizens?”
Well, having heard these questions so many times, I figured I would provide a short explanation.
Immigration law is very complex and convoluted. Simply put, it can take years, even for a person who is legal and documented, to become a citizen of the United States.
But the problem is even deeper. In order for a person to immigrate to the United States, he or she must have an immigrant visa petition filed either by an employer, or by a family member. Those are two main classes of immigration, and I will not discuss the other immigration options in this limited space. Both of those classes of immigration are horribly backlogged-that means there is a limited number of immigrant visas or green cards available each year, and the number of applicants for those green cards each year far exceeds the supply. When demand exceeds supply, the line simply gets longer and longer.
For example, the waiting period for brothers or sisters of US citizens who are from the Philippines is as long as 22 years! Yes, you read that right – 22 years.
On the employment side, things are just as bad: an alien of extraordinary ability who was born in India will have to wait at least eight years (as of the time of this writing) to obtain permanent residence.
So there’s the long wait. A person would use all of his or her most productive years simply waiting in their home country for a visa. Nobody wants to immigrate to the United States at the age of 60, and start a new life, especially when their best and most productive early years are behind them.
Then there’s the issue of exorbitant USCIS filing fees, processing times, and very burdensome requests for evidence. All of these factors further weigh down upon an alien, who is already under pressures of having to care for his or her family, either in the USA or overseas. Finally, there is the absence in the law for any kind of forgiving mechanism to-for example-pardon the unlawful presence of an alien in the USA and allow them to adjust status (obtain a green card) without having to leave the USA and file an application for a waiver in order to reenter. The previous law under INA section 245 (i) expired April 30, 2001, and Congress has never renewed it. If renewed, it would be a great source of revenue to the US treasury. Such forgiveness would also alleviate some of the burden on the already incredibly overloaded immigration court and detention and removal system, because removal (deportation) cases for aliens who overstayed or entered illegally could be closed.
All of these issues can be solved through common sense and simple legislation. But Congress hasn’t done it.
Many individuals also think that an alien who has received “DACA” status is either already a US citizen, or is on the pathway to citizenship. This cannot be further from the truth. DACA is simply a temporary status, granted to a childhood arrival who was brought to the United States through no fault of his own, by his or her parents or another family member. DACA simply allows the alien child (who might now be an adult) to remain in the United States, live here, and work as long as the status is renewed and as long as the alien commits no crimes, including a DUI.
The grant of DACA status does not permit the alien to apply for permanent residency or for citizenship, both of which must be through some other independent legally authorized avenue, such as employment or family sponsorship.
So, the next time you hear “Why can’t “they” just become legal?”, or “Why can’t they just become citizens?” you will have some of the facts to answer why.
Please stay tuned for other articles like this on general immigration topics and information you can use in your everyday conversations.
Thank you for your interest in this very important topic.
© Farhad Sethna, Attorney, 2019
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.