Once again, in 2013, we are in the midst of a new possible immigration reform. Considering that this law may not pass before the posting of this blog, I decided to concentrate today on what myths are floating around our population to better inform the public in general. Besides, most likely any law being proposed today by the Senate as of the submission of this blog, will most likely be completely changed with the help of the House.
Some of the following myths are the most common ones we hear as practitioners of immigration law. These myths will be given as a statement from the perspective of the immigrant to better understand the answer:
1) My husband and I got married again in the U.S. so he could petition me since our marriage in Italy doesn’t count.
ANSWER: Any legal marriage which takes place anywhere in the world can be used in the U.S. for immigration purposes, even if the state you will reside in would not have allowed it. Example: In Texas first cousins are not allowed to marry. In other states and countries, first cousins are allowed to marry. Immigration law looks at the location of marriage to determine if it is valid, and generally ignores whether the marriage is recognized in the state where you live.
2) My wife is a U.S. Citizen and I am German. Her company sent her to work in Germany where we met and married. She is now pregnant, and we want to travel to Colorado to live there as a family. I will buy my airplane ticket to go to the U.S. on the visa waiver program , and will worry about getting a Green Card later.
ANSWER: Whenever foreign nationals enter the U.S. as Visitors, they must not intend to abandon their home in their native country. In this case, immigration officers will most likely deny the German’s entry into the U.S. because it is now obvious his intent is to reside in the U.S. and not just visit. He must remain in Germany while his wife files the appropriate paperwork for his Lawful Permanent Residency (Green Card). About 6-9 months.
3) I am a Legal Permanent Resident, I was convicted for a DWI in 2004, and the court released me on probation. I paid the fines, went to my AA classes, and I have opened up a business and currently employ 40 Americans. In 2006 I spoke to an immigration official, and he told me not to worry because one DWI does not make me deportable.
ANSWER: Americans enjoy protection against “ex-post facto laws” – they are expressly forbidden by the U.S. Constitution in Article 1, Section 9, Clause 3. Unfortunately, non-citizens do not have the same rights. In other words, if Congress were to pass a law today stating that any non-citizen with a DWI conviction is deportable, with no exceptions, this law would also apply to those with convictions prior to the passage of the new immigration law. Here, this non-citizen, even though he paid his debt to society, would be deportable.
4) When I was 17 years old, I was convicted in Bexar County for shoplifting a $25 Spurs cap. I paid my fine and successfully finished my probation. I have been a Legal Permanent Resident since I was 6 years old, and today I am 24 years old and a graduate of MIT. My new employer in San Antonio wants me to travel to Canada to fix a server at our Canadian office. I should have no problem traveling abroad.
ANSWER: As an American, your entry into the U.S. cannot be denied, but in this case, the Legal Permanent Resident (LPR) will probably get arrested upon returning to the U.S., and will not be able to post a bond to get out of immigration lockup (mandatory detention). He is considered inadmissible for a CIMT (Crime Involving Moral Turpitude).
5) I just became a U.S. Citizen, and I now want to fix my parents’ paperwork (get them their Green Cards). My parents and I came to the U.S. illegally when I was 15 years old. I married my high school sweetheart, became a LPR, joined the Marine Corps, and now have a successful business. My LPR uncle told me that my parents could have their Green Cards in 6 months.
ANSWER: No! In this scenario, the parents entered illegally into the United States. This means that they would have to go back to their native country, and would have to wait 10 years before they could return to the U.S. as LPRs. There is a waiver of this 10 year bar, but it only applies if you have parents or a spouse who is legally in the U.S., and who would suffer without you.
6) I am a U.S. Citizen, and my Brazilian girlfriend, whom I met through Match.com, is living with me in Boerne. She came to visit me 2 years ago, and we now have two children together. Since she has U.S. citizen children, immigration officials (ICE) cannot arrest or detain her.
ANSWER: No matter how many U.S. citizen children you have, if you are in the U.S. without legal immigration status, you can be arrested and detained. Since she has overstayed her tourist permit, she is here illegally, and subject to immigration arrest and deportation by ICE officers.
7) I am a U.S. Citizen and I own doogler.com. Tony from India is one of my tech partners. We met at Harvard, and just graduated. He wants to stay in the U.S. to help me make doogler.com the biggest internet company in the world. We don’t have any money yet, so I can’t pay him very much, but I know because of his talent he should have no problem staying.
ANSWER: Unless Tony has international recognition or can prove that his knowledge will be of substantial interest to the U.S. Government, he will have a hard time staying in the U.S. as an employee of doogler.com. Doogler.com will have to file a petition for him, and must prove that he will be making a salary which is commensurate with his position as a computer programmer, about $50k+ per year.
8) My wife is a U.S. Citizen and in the military. I came to the U.S. in 1997 by telling an immigration official at the border that I was a U.S. citizen. The officer detained me for a few hours, but eventually let me go. He said I would speak to an Immigration Judge, but I never received a letter from the court about my case. My wife is about to be deployed to Afghanistan, and I need legal status to gain access to the military base. Since I entered through the bridge, I understand I qualify to get a Green Card.
ANSWER: Even though one of the prerequisites to apply for a Green Card inside the U.S is a legal entrance through a Port of Entry (entry through the bridge vs. through the river); unfortunately in this situation, since he made a false claim to U.S. Citizenship, he is barred for life from becoming an LPR.
9) My daughter was born in the U.S. 18 years ago and is serving in the military. I came legally with a Student Visa from Colombia, and I fell in love with a professor at UTSA. After our daughter was born he left us and I had to fend for myself. The “notario” told me that since she is in the military and 18 years old, she can petition me so I can get a Green Card.
ANSWER: No, she cannot petition you until she is 21 years old.
10) My LPR wife was deported after a Texas court convicted her of selling marijuana to our neighbors. An immigration official told me that she can’t come back for ten years, but that once her ten years are up, I can petition her, and she can live in Texas again.
ANSWER: A person that is deported from the U.S. cannot legally return for ten years, unless he or she gets a waiver. However, people who are deported for criminal reasons will usually also have trouble returning to the U.S. because of their convictions. This person will be barred for life from returning to the U.S. because she was convicted of drug trafficking.
11) My girlfriend and I want to get married after we graduate from high school. We will live with my parents, take the bus to the community college, and pay for our living expenses in cash. I was born in the U.S. and she entered with a visa, so after we’re married, I will be able to petition for her without any problems.
ANSWER: When a U.S. citizen petitions for a spouse, he or she must prove that the marriage relationship is real, and was not entered into just for immigration purposes. This requires proof that you live together, share money, and are making a life together (i.e., leases, insurance records, bank records, and other documentation). The couple in this scenario will have problems proving that their marriage is real to an immigration officer.
12) I have been a Legal Permanent Resident for six years, but I don’t want to apply for citizenship because my English is not very good. I can talk to my grandchildren in English, and I can talk to English-speakers at the store and the bank, but my brother-in-law told me the English tests for citizenship are hard.
ANSWER: When LPRs apply for naturalization, they must pass an English reading, writing, and speaking test. Basically, you read one sentence from a list that the Immigration Service publishes online, and you write the answer to this sentence, which is also online. The speaking test involves talking to an immigration officer about your life, your children, and your past. You do not have to be fluent to pass the English tests, and there are good preparation courses that will give you the vocabulary you need to pass, even if you never speak English again. Also, most immigration officers use a pretty low standard in these tests. If you understand the basics, you’re usually fine.
13) I am a Lawful Permanent Resident, and the police just arrested me for carrying a gun without a permit. My criminal defense lawyer told me just to plead guilty and take probation. He says this is too minor for immigration officials to worry about. If I just plead guilty, everything will be fine in a few months.
ANSWER: No! Any conviction related to firearms will make an LPR deportable. Don’t plead guilty just because your criminal lawyer thinks it won’t affect your immigration status. Check with an immigration lawyer first.
14) My cousin just went to a “notario” to do his immigration paperwork, and the “notario” did not charge him very much. I am going to tell my immigration attorney to stop working on my case so that the “notario” can finish it for less money.
ANSWER: Even though some “notarios” have the experience needed to complete simple cases, immigration cases can get complicated fast. If you have criminal arrests, immigration violations, or other out-of-the-ordinary fact situations, you need someone who knows the law and knows how immigration offices interpret the law. Also, immigration lawyers can spot problems that other people miss. In sum, don’t use “notarios” to complete immigration paperwork. It looks as simple as filling out a few forms, but even one mistake in the process can lead to your deportation. Don’t take the risk.
15) Increased immigration is bad because immigrants take more from welfare than they pay in taxes, they bring crime and drugs with them, they steal jobs from Americans, and they just can’t adapt to American culture.
ANSWER: All of these myths about the horrors of increased immigration in the U.S. have been thoroughly debunked. There are always bad apples in any group, but for the most part, immigrants start more businesses, create more jobs, and have a stronger sense of community than native populations. Especially under our current immigration system and economy, anything that would allow increased access to visas and lawful immigration status for foreign workers will benefit our society as a whole.