Immigration Q&A

Immigration Q&A

July 26th, 2011 by Perla Trevizo in News

More than 11 million illegal immigrants live in the United States, and their numbers are growing in the South. Chattanooga immigration attorney Robert Divine talks about immigration law and the options for legally migrating to the United States.

Q: Why do we have a problem of illegal immigration, especially of low-skilled workers?

A: People around the world crave opportunity and safety, and that has been the draw here. The economy has needed people to do lots of tough and unpleasant tasks, but Americans who are worried about their job opportunities tend to be concerned about the possibility of a large number of unskilled, economically desperate people coming to the United States and willing to work in tough jobs for cheap. I don't blame them for that. And so we have not been able to come up with a political solution that connects opportunities for immigration with the need of the U.S. economy.

Q: What are some of the ways people can migrate to the United States legally?

A: The primary ways for people to migrate permanently are through family sponsorship or employment sponsorship. For family, the sponsor has to be someone who is here either as a citizen or a permanent resident and only certain relationships. So, a citizen can sponsor a parent, spouse, child and a sibling. A permanent resident can only sponsor a spouse and children under 21. Employers can sponsor people who show that typically no Americans are qualified and available to do the work.

Whichever way, family or employment based, in most cases there's a waiting list. How long the waiting list depends on the nature of the status of the sponsor and the category; the relationship in the family case, or in the employment case, where the person is from and how complicated the work is.

There is also a "visa lottery" of 50,000 green cards every year. Anyone from a country other than about 15 countries that send the most people otherwise can electronically register in October on the State Department website, with about a 1 in 100 chance. Winners have to show they have a high school degree or two years work experience and process for green cards with their spouse and unmarried children under 21.

Q: What is the time range for sponsoring someone?

A: The list changes monthly. Aside from parents, spouse and children of a citizen, for which there is no waiting list, for any other form of relationship it is typically somewhere between three years and 22 years.

Q: Why so long?

A: Congress made a limit. When they set up these categories for immigration they set limits per fiscal year. They cannot give out more than a certain number of visas in a year. On the employment sponsorship there are 140,000 available for all of the categories of employment sponsorship per year for the world. Those numbers have to be used not just by the worker but also by the family members, typically 2.5 family members per worker, so really 140,000 slots mean maybe about 40,000 workers for the whole nation for a year. It's similar for the family sponsorship category. The family-sponsored preference limit is 226,000, but there is no limit on "immediate relatives" (parent, spouse, unmarried child under 21) of U.S. citizens, which tend to bring as many people per year as all the limited family preferences.

Q: Why is it different depending on the country?

A: Congress, when it made these limits, said no one country can use more than 7 percent of the total of any one category. If a country is sending a whole lot of people then that country is typically going to run to a separate limit in a given year. India has way more than a billion, China has more than a billion people, but they can only have 9,800 people immigrating for employment-base migration from that country in a given year. That makes the time for waiting longer for somebody from one of those countries. A few countries have waiting lists like that, primarily India, China, sometimes the Philippines sometimes Mexico.

Q: For a low-income person, with limited education, what are some of the possibilities to migrate legally to the United States?

A: If the person has a family member in the right status who is willing to sponsor them, that's one option. If there's an employer who wants to sponsor them, then the employer can go through the process and show there's no American who can do the job. But in either case you are talking about something that's not going to result in actual use and immigration until 7, 10, 20 years later. So for most employers that's not really much of an option if they can't get the worker here in the short term. And even if a sponsor would pursue the process and wait for the "visa number," or win an annual lottery, there would be usually a time bomb at the end, because someone who was in the U.S. illegally (sneaked in or overstayed) cannot finish the process within the U.S., and if they go to process at a U.S. consulate abroad, as they depart they become legally barred from coming back for three or ten years. There is a waiver for someone who shows "extreme hardship" to their parent or spouse (not child) who is a U.S. citizen or permanent resident, but that is tricky and risky. There is a low percentage shot for people who get caught after having been here ten years with good moral character and no meaningful crimes, but that takes a showing of "exceptional and extremely unusual hardship" to a parent, spouse or child who is a citizen or resident. Certain people from Guatemala who came here long ago and filed for asylum or made a certain registration can show less hardship and get to stay, it's called NACARA.

Q: Can the person get here temporarily and work while they are waiting through some period for longer term sponsorship?

A: There aren't really very good options. The options that would allow people to come and work are focused on either people doing a job that requires at least a bachelor's degree or people transferring within a multinational company or being assigned from outside for a very short training situation.

There's one category someone might think is useful, the H-2, which has an 'a' and 'b' component - H-2A being agricultural and H-2B non-agricultural. That allows an employer to sponsor a worker when the employer can show there's no American available for the short term need. But it's not very useful because the job itself has to be temporary or has to be seasonal. It works fine for agricultural , but there are other requirements associated with the agricultural visa that are very difficult for employers to comply with and they generally don't use it.

The temporary categories are very limited, and the permanent categories take a long time, so why would you sponsor somebody for a job you need today and you can't get this person for five, 10 years ?

Q: When people talk about a line, is there such a line?

A: The way to get in line is through family or employment sponsorship. If you don't have anyone who is legal who is connected to you in the right way, then you can't get in the line. It's pretty hard to find an employer in the United States who wants to go through the process of sponsoring you if you are outside the United States and you are not going to be able to be here for five to 10 years.

Divine is the chairman of the Immigration Group of Baker, Donelson, Bearman, Caldwell & Berkowitz. By presidential appointment, he served in Washington, D.C. from July 2004 until November 2006 as chief counsel and, for a time, acting director of United States Citizenship and Immigration Services. He is the author of "Immigration Practice, a practical treatise on all aspects of U.S. immigration law."