Your Immigration Questions Answered

Carly Burton, Policy Associate and Eva Millona, Policy Director of the Mass. Immigrant and Refugee Advocacy Coalition (MIRA) were the featured speakers at the July 2007 CRC Information Session. Staff had previously submitted their tough immigration questions and case scenarios for discussion.

First some background statistics about immigrants in Massachusetts. There are an estimated 900,000 foreign-born individuals in the Commonwealth. Of these, about 175 – 200, 000 are undocumented (about 20%). About 300,000 have a green-card and are eligible to apply for citizenship once they’ve established 5 years of residency in the U.S. About 400, 000 are naturalized citizens. Of the undocumented, some have entered the country without a visa, and some have over-stayed the length of time approved on their visa.
Note: All immigrants are required to carry their documentation with them at all times.

Visas
What is a visa and how does one apply? A visa is the document that lets one enter this country. One applies for a visa in their country of origin and is interviewed by the U.S. consulate in that country. There are two main types of visas- immigrant and non-immigrant. Non-immigrants are those who come for a specific purpose who report no intention to stay permanently. There are 22 types of non-immigrant visa statuses. Some examples include students and to gain professional experience. Visa holders are required to return home once the purpose of their stay has been completed. Immigrant visas indicate that one is applying to be here permanently and ultimately to become a Lawful Permanent Resident.

Lawful Permanent Resident Status (LPR or “Green Card Holders”)

LPRs have work authorization and after 5 years of residency (3 years if married to a U.S. citizen) can apply for citizenship. There are two main routes to get a green-card. They are based on either family sponsorship or employment.

FAMILY SPONSORSHIP
Family-based sponsorship is a two-step process. First a U.S. citizen or LPR files a petition for their family member(s). Second, the family member (“beneficiary”) applies to immigrate and obtain a visa. This can take place either in the U.S. through adjustment of status or at the U.S. consulate in the country of origin.

U.S. CITIZENS can petition for:
  • a spouse,
  • parents*
  • children (any age, married or unmarried)
  • siblings*

    • *U.S. citizens cannot sponsor parents or siblings until they are over 21. There is no age limit to sponsor a spouse.

    A subset of the relatives a citizen can sponsor: the spouse, parents and unmarried children under 21, are considered “immediate relatives” for whom there is no annual limit on the number of visas available.

    LPRs can petition for:
    · spouse
    · children (any age, unmarried only)
    All relatives other than the “immediate relatives” of U.S. Citizens fall under the preference system. These preference categories can determine the likely wait for a visa. Even if one is immediately eligible for a visa, one needs to wait for one to be available. For an immediate relative the wait may be a few months, but it is common for waits to be 7 –15 years for relatives who fall under preference system.

    Adjustment of Status
    When the visa becomes available, the immigrant may apply to become an LPR. If the immigrant is already in the U.S. and was lawfully-admitted (such as on a non-immigrant visa or was able to get their status here, i.e., Temporary Protected Status), they may qualify for an “adjustment of status” so that they do not need to leave the country to obtain an immigrant visa.

    EMPLOYER SPONSORSHIP
    A U.S. employer may sponsor someone for a specific position where there is a demonstrated absence of U.S. workers. Most employment based aliens must obtain a “Labor Certification” from the U.S. Department of Labor, that verifies that no American worker is available and qualified to take the job.

    SELF-SPONSORSHIP: Victims of Domestic Violence
    Battered spouses can self-sponsor under the federal Violence Against Women Act (VAWA). These people are already present in the U.S. and might otherwise be required to rely on the batterer to petition and therefore be vulnerable to exploitation based on their immigration status. Through the Violence Against Women Act, victims of domestic violence who were abused by USC or LPR and married to USC or LPR, are eligible to apply for their own green card.

    SELF-SPONSORSHIP: Victims of Trafficking
    People who are coerced into coming to this country (not of their own volition) may be considered trafficking victims. They could be eligible for a T-Visa which is a non-immigrant visa. After three years, they can be eligible to apply for their green card.

    The Diversity Lottery
    There are about 50,000 additional visas available each year through a lottery system (though there is no guarantee that the program will continue). This program is designed to increase the diversity of countries from whom we admit immigrants. Eligibility depends on the country of origin (not all countries receive diversity lottery slots) and requires at least a high school diploma. If one is already legally present in the U.S. one may apply, but it is not a remedy for being undocumented.

    Note: for citizens of Syria, Sudan, Somalia, Libya, Iran and Yemen- learn more about Trump's travel ban and its impact on the Diversity lottery.

    Refugees
    Refugees are those who must flee their country due to fear of persecution based on five internationally recognized grounds. These grounds are: race, religion, political opinion, membership in a social group or national origin. These immigrants receive their status before entering the U.S. and usually are at least somewhat sponsored by a refugee organization that offers some settlement aid. Refugees do not automatically receive a green card- they must apply after one year of having refugee status.

    Asylees
    Asylees are similar to refugees, but they either seek asylum upon entering the U.S. or apply for the status within one year of arrival. Those that win asylum status can apply for a green card after one year of receiving that status. If one loses the asylum case he or she is deportable. Many people at this point stay and become fugitives. Only a small percentage of asylum cases are granted. Those who are free pending a decision have a very difficult time getting work authorization. Prior to 1997 it was much less difficult. One tip- if USCIS fails to respond to them within 180 days they are entitled to work authorization.

    Asylees are eligible to become LPRs one year after receiving asylum. (https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works)

    Detention- Some come to the U.S. with false documentation (often because that is the only way to escape their country) and request an on the spot interview, called the “credible fear” interview. If one has entered with fraudulent documents they will remain in detention pending their case. Those in detention have to hire and pay their own lawyers or represent themselves and it is very difficult to get representation in detention. Most detainees end up representing themselves.

    More information: Asylum in the US- Fact Sheet from the American Immigration Council, 8/22/16

    Humanitarian Parole
    Humanitarian Parole is very rare and can only be requested for people outside of the U.S. Typical examples of this status are when refugee quotas are exhausted and the U.S. is willing to let in more refugees from a war or natural disaster (such as the tsunami), or when a spouse is in danger overseas. There is a time limit for the duration of stay of a maximum of one year, though individual cases may be shorter. This is NOT an option for as an example, an undocumented parent of an ill citizen child.

    (CRC note- A grant of humanitarian parole allows those who are unable to obtain a visitor visa to apply to enter the U.S. based on urgent humanitarian reasons or if there would be a significant public benefit resulting from their admittance to the United States. Applications are decided on a case-by-case basis. Some examples of why you might apply for humanitarian parole may include, but are not limited to:

    Humanitarian Relief
    There is very limited humanitarian relief- might be an option for undocumented parents with sick children. This differs from Humanitarian Parole in that it is for those already in the country. It is granted at the discretion of the service. Some forms of humanitarian relief mean you cannot apply for a green card.

    The Undocumented

    Key points to remember:

    1. Advise everyone with immigration issues to consult a lawyer with immigration experience. The Community Resource Center or MIRA can help you find an immigration lawyer or at least an immigration clinic for a legal consultation.

    2. Do NOT advise people to go to the Citizenship and Immigration Service or Immigration and Customs Enforcement ( the former INS) with these questions- they may be detained on the spot. Always talk with an immigration lawyer first.

    “Curing” Undocumented Status
    Non-immigrants who over-stay their visa and are caught may face a bar on getting a visa to re-enter the country.

    Over-stayed their visa for:   Face a bar of:  
      Less than 6 months   No bar
      6 months - 1 Year   3 years
      More than 1 year   10 years

    Note: Immigrants under family sponsorship who are in the highest priority group (immediate relatives- a spouse, unmarried child under age 21, or a parent) can “cure” over-staying a visa; they are just “forgiven” from overstaying because they were inspected at the border.

    There are not many options for “curing” undocumented status if someone entered without inspection.

    IMMIGRANTS AND PUBLIC BENEFITS
    Immigrants are often reluctant to apply for needed public benefits. Two key issues should help to lay some of these fears to rest.

    Department of Transitional Assistance (DTA) staff do not report undocumented immigrants to the immigration authorities unless the immigrant shows them orders for deportation and even then, reporting is NOT automatic. MIRA staff report that they are not aware of any cases where someone has been turned in by DTA staff. When asked for a social security number, applicants need only say that they are not applying for themselves and then just give the appropriate information for the family members for whom they are applying. They do need to report their income. Here is the MassHealth brochure “What noncitizens need to know about applying for MassHealth, the Children’s Medical Security Plan, Healthy Start, and the Uncompensated Care Pool” http://healthcare.partners.org/ss/ssframebottom/staffresources/news/2005/Masshealth%20for%20Non-Citizens%2012-05.pdf


    Public Charge describes persons the immigration service believes will become primarily dependent on public benefits. Depending on your immigration status, the Immigration and Naturalization Service (INS) and State Department consular officers abroad can refuse to let you enter the U.S., re-enter the U.S., or become a permanent resident, if they think you will not be able to support yourself without these benefits in the future. Public charge is concerned with cash assistance or whether you will require long-term care. It is not a concern for non-cash benefits such as health care, food stamps, housing, fuel assistance. Public charge is also not an issue for immigrants who are applying to become citizens- only those applying to become an LPR. Public charge is not an issue for refugees or persons granted asylum. For more information see our website: www.mghsocialwork.org staff access >Services for Specific Populations > immigrants or - http://healthcare.partners.org/ss/ssframebottom/staffresources/New%20Site/Special%20Populations/ImmigrantPublicCharge.pdf

    -Thanks to Carly Burton and Eva Millona for their presentation and help with this article. They have graciously offered to be available if you need clarification.

    7/07