Immigration Filter

October 6, 2008 5:31 PM

A friend of mine has been in the US for about 14 years, but her visa expired about 3 years ago. What does she need to do to rectify the situation?

Other relevant facts: She has been here since childhood. She is not currently working, but is trying to find a job. She has two children who were both born in the US. Her mom is also here, but is not a citizen, although the mom might have a current visa. She has exactly zero funds to pay a lawyer.

If you have any knowledge about these things or any resources that you can point me to, I'd really appreciate it. She is in Virginia, so if you know any resources there, that would also be great. She is very afraid that taking any action on this will get her deported, so information on the likelihood of that would also be really helpful. Thanks!

posted by LittleMissCranky to law & government (18 comments total)

Work illegally and stay under the radar.
posted by k8t at 5:43 PM on October 6, 2008

I can't answer your question, but wanted to add to k8t's comment: if she does decide to maintain this status, as an illegal immigrant she may be eligible for emergency medical insurance provided by the state. At least she would be in MA, where applicants are explicitly told that their information will not be passed on to immigration authorities. It is possible that a similar programme exists in VA.
posted by Dragonness at 6:23 PM on October 6, 2008

Other than following k8t's suggestion, your option would be to talk to an immigration lawyer or counselor. You can do this without endangering her status, as long as you've got the facts straight (like, does Mom have a visa, or not?). Unfortunately, having US-born children does not get her to the front of the line -- per Wikipedia, "an estimated 13.9 million people -- including 4.7 million children -- live in families in which the head of household or the spouse is an unauthorized immigrant." Having been legal for 11 years and illegal for the last 3, if that's accurate, might be somewhat positive (compared to never having been legal at all). But really, if you want to help her, see someone with the facts and get advice; you're not going to get anything definitive here. As to gambling on the likelihood of getting deported: if they figure out she's illegal, they will detain and deport her, leaving the kids in limbo.
posted by beagle at 6:26 PM on October 6, 2008

According to this helpful flow chart, having immediate family who are citizens is immigration gold. And by gold, I mean green card.
posted by mullingitover at 6:26 PM on October 6, 2008

She'll likely have to go back to 'home country' if she wants to re-apply for a visa, by the way.
posted by k8t at 6:33 PM on October 6, 2008

The less-than-complimentary-term for citizen children of non-citizen parents is "anchor child".

Regardng "family reunification":

Citizens and permanent residents of the United States may sponsor relatives for immigration to the United States in a variety of ways. Citizens of any age may sponsor their spouses and children, but only citizens who have reached the age of 21 may sponsor siblings and parents. Permanent residents may only sponsor spouses and unmarried children. In all cases, the sponsor must demonstrate the capacity to support their relative financially at 125% of poverty level, and provide proof of the relationship. Immediate relatives of United States citizens (spouses, parents, and unmarried children under 21 years of age) are automatically eligible to immigrate upon approval of their application. All other people eligible to immigrate through a family member must wait for a place; a preference system governs the order at which these places become available.

Having US citizen minor children has been mischaracterized as being beneficial in deportation proceedings; such benefits do not exist except in the very rare case of extreme and profound hardship on the child. The number of such hardship waivers is capped at 5000 per year. Federal appellate courts have upheld the refusal by the Immigration and Naturalization Service to stay the deportation of illegal immigrants merely on the grounds that they have U.S.-citizen, minor children.

There are some 3.1 million United States citizen children with at least one illegal immigrant parent as of 2005; At least 13,000 American children had one or both parents deported in the years 2005-2007.

So I wouldn't place much hope on the fact that your kids were born here, unless they're adults and gainfully employed.
posted by Class Goat at 6:39 PM on October 6, 2008

I used to work for an immigration lawyer, but never really dealt with anyone illegal, so I may not be of much help. She can't really "rectify the situation" at this point. The mere fact that she has (minor or not) children who are U.S. citizens will not prevent her deportation, although "extreme hardship to the children caused by the deportation of the parents is a factor to be considered in the discretionary suspension of deportation". Once her children turn 21, they can sponsor her for permanent residency status; however, she will have to be out of the U.S. while the application is processed (and this could take years).

k8t is right, there's pretty much nothing she can do at this point, other than working illegally and saving up for a lawyer (for reference, my perfectly legal outstanding-scholar-sponsored permanent residency came with a $12,000 price tag, so to be perfectly honest I have zero sympathy for your friend). Keep in mind that she is putting her children at a huge disadvantage when it comes time for them to apply to college, not only financially, but also admissions-wise: in order to qualify for in-state status, her kids will be asked to prove that their parents reside in the state legally.
posted by halogen at 6:42 PM on October 6, 2008

You need to seek legal advice of some sort, from someone well versed in immigration law. I believe the Catholic church runs free immigration clinics in some areas.
posted by dcjd at 6:42 PM on October 6, 2008

If she leaves the country, she will have a very difficult time coming back. She needs to find a community legal service, in a church, community centre or legal aid society that can see if there's she can do.

Halogen, I immigrated legally, too, but it was hard enough that it really irks me that you're so quick to offer you're little judgement. There are countries and family situations that are screwed up enough that returning is not really an option, even if things aren't bad enough to be a refugee.
posted by gesamtkunstwerk at 7:12 PM on October 6, 2008 [1 favorite]

A friend used to do some pro-bono work that involved immigration issues - she told me stories about how the situations can be kafkaesque, and the officials involved merciless - don't even think about trying to navigate this without having consulted some sort of professional help, be it from a non-profit, or your own lawyer.
posted by Calloused_Foot at 7:20 PM on October 6, 2008

Here's one Virginia immigration counseling operation.
posted by beagle at 7:22 PM on October 6, 2008

I believe the Catholic church runs free immigration clinics in some areas.

This was going to be my suggestion. They do this here, and the word is that they are really good clinics. But you want the church with the big immigrant population and an activist priest — here, there are several Catholic churches, but only one that runs these clinics.
posted by Forktine at 8:07 PM on October 6, 2008

(for reference, my perfectly legal outstanding-scholar-sponsored permanent residency came with a $12,000 price tag, so to be perfectly honest I have zero sympathy for your friend)

Truly, only someone who makes Hitler look like Santa would do something as horrible as be the child of someone moving to the US, and be made to grow up in the US whether she likes it or not, and then find herself illegal. To the deathatorium with her, and select "SLOW AND HORRIBLE"!

She has kids... is she married to an American? If so, she should still see an immigration lawyer to talk about it, but probably all she needs to do is have her husband file the I-485 paperwork.
posted by ROU_Xenophobe at 8:11 PM on October 6, 2008

gesamtkunstwerk, you're right, my snarky comment doesn't belong in the illegal immigration thread--I flagged myself. I guess I am still upset that I had to pay $400 to replace a stolen green card that I will need over Christmas. I know nothing about her circumstances and am lucky to never have had the worries that she must be dealing with, but I still feel that she has done an incredible disservice to her children by letting her legal status expire. A personal judgment, however, was uncalled for.
posted by halogen at 8:22 PM on October 6, 2008

She must straighten this out. MUST. It will be so much cheaper now than later, when the DHS catches up with her (and they very likely will -- the pressure is on them to find and deport those present illegally, regardless of how sympathetic they are). She WILL need a lawyer to straighten this out. She can likely go through a legal clinic that will provide low-cost or free consultations, but she'll probably need to cough up several hundred or thousand dollars for the fees that will be associated with becoming legal. (Many immigration attorneys do work out good fee systems, even for people with exactly zero dollars. Seriously.)

The good news is that there ARE ways of becoming legally present. But it will be costly, and will take a long time. And if she finds a job, she will become even more likely to be found by DHS. Taking action (if handled by a smart attorney) won't increase her chances of being removed. It will increase her chances of not being removed.

Seriously, this is like having cancer. Take care of it early and it's expensive and painful. Take care of it later, and it's expensive, painful, and it's the end of life as she knows it. Deportation is much harder to fight than correcting her legal status. And NO she should NOT leave the country to try to sort this out. She should sort it out from within the U.S. with an immigration lawyer's help.

Sorry to be so scary and strong, but this just has to be taken care of.
posted by Capri at 11:10 PM on October 6, 2008

She should also start planning and arranging for a return to her home country. This could happen very soon or it may hopefully be delayed. She doesn't want to be in the position next week of being deported with no money or housing. This probably means finding any job as soon as possible so she gets some money coming in.
posted by JJ86 at 7:00 AM on October 7, 2008

I'd agree with Capri, and point out that people have certain constitutional rights (independent of citizenship) when they are HERE that they do not have when they are attempting to access them from outside the country, or when they are caught attempting to enter the country illegally. The concept of parole (an immigration term meaning that people trying to enter the country can be permitted to be present without access those same constitutional protections and without officially "entering" the country) has expanded in recent years, and given the recent debacles over immigration issues, I'd suggest that she will want to look into taking care of this before long.

When you say she has no money for a lawyer, that may mean one of two things: 1) she is indigent and therefore potentially eligible for legal aid services; 2) she has no disposable income to be spending on an attorney. However, it is important to know that any legal aid clinic that accepts funding from the Legal Services Corporation (a governmental corporation for funding legal services to the poor) will likely be unable to help her. They are restricted by virtue of accepting that funding from offering their services to undocumented immigrants. This will be easy to determine, since you can simply call an intake worker and ask if a) they assist with immigration issues; b) if you have to be an american citizen or lawful permanent resident to qualify for services. They'll be pretty up front with you. But don't assume that they all are out of reach. Legal Services of New Jersey maintains one branch that refuses federal funding for exactly this reason, and other locations may behave similarly.

Also, you haven't mentioned when and why they emigrated. If this is an issue that can be dealt with through asylum, that's another kettle of fish entirely. (Though there's nothing in your question to suggest that she has a well-founded fear of persecution, injury or death if she were to be deported.)

Best of luck to her.
posted by greekphilosophy at 11:58 AM on October 7, 2008

As far as I know, these are the only options that don't involve having to leave the country for many years while her paperwork is processed.

1) Marry a citizen
2) Stay under the radar, hope she doesn't get caught before the next amnesty.
3) In preparation for the day she does get caught, she should work on getting an American college degree. If she does get deported, she'll be far more likely to be able to make a decent living with an American degree. This should really be one of her top priorities, and a call to the local community college to find out what paperwork they need (and if any of it can be faked) should be completed ASAP. Also, if she doesn't speak her native language too well (possible if she was raised here) take classes to learn it. It's best to be prepared.

One more thing to consider:

4) Explore immigration to Canada. An undocumented Pakistani family I know had to move there, and they're doing quite well. This is another reason to get a college degree, the Canadians are far more likely to take her if she has real skills.
posted by exhilaration at 2:47 PM on October 7, 2008