By Attorneys Frances E. Arroyo and Nancy E. Miller
There are numerous immigration avenues to a green card currently in place. Immigrants with a pathway to legal status should pursue it now. Under one immigration reform proposal, undocumented immigrants will have to wait 10 years to apply for green cards. They will need to wait three more years to be able to apply for citizenship. The bill currently being debated in the House of Representatives proposes a 15-year path to citizenship for unauthorized immigrants, two years longer than the 13-year proposal in the Senate plan.
It is important to remember that changes in law take time to pass through Congress. Therefore, it is sensible to seek out other options to legalize your status is the U.S. One such option is cancellation of removal. Cancellation of removal allows some people to get green cards if they have lived in the U.S. for ten years, have good moral character and can show that their U.S. citizen, or Legal Permanent Resident parent, spouse or child would suffer a high level of hardship. Cancellation can only be granted in immigration court by an immigration judge. Applicants are eligible to obtain employment authorization as soon as the application is filed with the court. With work authorization you may apply for a social security number, work legally and obtain a state issued drivers license.
Applying for a family based immigrant petition is another option for those who have been patiently waiting for immigration reform to pass. Immediate relatives of U.S. citizens (spouse, unmarried child under the age of 21or parent if the U.S. citizen is over the age of 21) have special immigration priority and do not have to wait in line for a visa number to become available for them to immigrate. Those family members who are not immediate relatives (sons, daughters, brothers and sisters of U.S citizens and spouses, children and unmarried sons and daughters of LPR’s) are subject to waiting periods before a visa is available to them. Even though some of the waiting times for certain family members may be daunting, it is imperative to file these family petitions as soon as possible.
There are two strategic reasons for filing a family petition before immigration reform becomes law. First, Congress wants all those who are waiting in line before reform to get their green cards before recipients of reform get theirs. It is possible that reform will involve eliminating or shortening the visa backlogs in order to accomplish this goal.
Therefore, if reform passes, family petitions already in place may be subject to a lesser waiting time. Secondly, two visa categories may be eliminated with the passage of immigration reform: married sons and daughters of citizens and siblings of citizens. The elimination of the visa categories is part of the strategy to alleviate the visa backlog. If these categories are eliminated it may not apply retroactively to the petitions already submitted. Therefore it is vital to file before the visa categories are eliminated.
Within the past year, two immigration policies have been instituted by the Department of Homeland Security to allow more foreign nationals to apply for immigration benefits. On June 15, 2012 the Deferred Action for Childhood Arrivals “DACA” became a reality for individuals brought into the U.S. as children. Under this directive, immigrant youth are authorized to request a temporary two-year reprieve from deportation and apply for a work permit. While immigration reform is debated in Congress, as of March 2013 U.S. Citizen and Immigration Services estimate that 268,361 DACA applications have been granted. The immigration service continues to accept and adjudicate DACA applications.
The provisional waiver allows individuals who only need a waiver of inadmissibility for unlawful presence to apply for and obtain the waiver in the United States before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.
Individuals who are ineligible to apply for adjustment of status in the U.S. such as (1) those who entered the United States without inspection by an immigration officer, (2) who came in as crewmen, or (3) who entered the United States on a fiancé visa but did not marry their petitioner may currently apply for the provisional waiver.
For those who already have a viable path to legal status in the United States to wait for potential reform is not practical. As the reform debate continues and politics unfold, more than one million individuals obtain legal permanent resident status each year. Getting federal immigration reform is going to be a long, hard struggle. For that reason, anyone who is eligible should take full advantage of pathways to legal status currently in place.