Been here a long, long, time...Do I really need to leave?
January 19, 2011 2:29 PM   Subscribe

Asking for a friend, and I understand that YANAL,YANML. A friend was recently contacted by a prospective employment agency telling her that according to the SSA, she was not an American citizen.

She came here from Italy with her parents 40 years ago, when she was 9. She married an American in her early 20's, has a 21 year old daughter from that marriage (who was born here), and has only left the country a few times many years ago, using her Italian passport.
She did get a green card, and a social security number, but she never went through the citizenship process after she got married, and the green card is expired.
She has no idea what this means for her regarding her prospect of being able to become a citizen now; if she will be able to, how difficult it will be, or if she will be able to work in the meantime (this discovery was brought on by her looking for work because her marriage of 26 years is ending).
She has applied for jobs before and has never had a problem with this prior to now. She has worked and filed taxes and has done everything all along the way as if she were a US citizen.
Plans are to contact an immigration lawyer as soon as she can get the funds together, but in the meantime we are looking for any information about what she can expect to have happen. She needs to try to find a job, so this is an issue likely to come up again. Or not. We don't know why it came up now all of a sudden when it never did in the past.
Secondary question: Does anyone know a good immigration lawyer in NYC?
posted by anonymous to Law & Government (18 answers total) 3 users marked this as a favorite
I don't know for sure, but you super, super need an immigration lawyer, like, yesterday. An expired green card could very well mean she's in the US illegally, and if she's in the US illegally she has very little chance of getting citizenship. She likely does not want to mess around with this stuff.
posted by brainmouse at 2:37 PM on January 19, 2011 [1 favorite]

Employers and employment agencies are checking much more carefully now that the feds are targeting employers who hire illegal aliens. So, yes, this is likely to come up and yes, she'll need an immigration attorney, particularly if she's out of legal immigration status.
posted by *s at 2:39 PM on January 19, 2011

According to this—and I don't know how reliable that information is—if she's eligible for a green card because of family members here, then being in the U.S. illegally wouldn't prevent her from getting one, as long as she hasn't entered the country illegally.

And of course, talk to an immigration lawyer.
posted by neal at 2:51 PM on January 19, 2011

By the way, are you sure that she's no longer a permanent resident? An expired green card doesn't necessarily mean you don't have status (wp).
posted by neal at 2:58 PM on January 19, 2011

Plans are to contact an immigration lawyer as soon as she can get the funds together

Funds, schmunds - find someone now - call legal aid. NY-area Legal Aid, Immigration Division. FYI this was approximately the top Google result for "nyc legal aid immigration" - not to insult your searching skills, just to let you know what types of terms are relevant.
posted by rkent at 3:04 PM on January 19, 2011 [1 favorite]

I don't understand why she apparently thought she was a citizen. To become a citizen of any country you need to either be born a citizen or naturalize. She was not born a citizen and she never naturalized. Of course she's not a citizen. If she's working in the US without a visa status that allows her to do so, she's doing it illegally. Unless she has the funds to be fired, unemployed or deported, she needs to get a lawyer funds or not.
posted by If only I had a penguin... at 3:11 PM on January 19, 2011

If only I had a penguin . . . more or less this exactly happened to my grandmother (many years ago) when my grandfather died. Someone she trusted told her that if she was married to a citizen, she didn't need to maintain her green card status. When he passed away, she discovered she needed to keep up her paperwork. So this can happen to people who truly believe that they don't have to do anything beyond being married.

FWIW, it turned out okay for my grandmother, but this was in the late sixties, so things have changed.
posted by Medieval Maven at 3:19 PM on January 19, 2011

I don't understand why she apparently thought she was a citizen. To become a citizen of any country you need to either be born a citizen or naturalize. She was not born a citizen and she never naturalized.

I think a little leeway is allowed when you immigrate with your parents at age 9.

But, traveling in/out of the US using her Italian passport should have been a big red flag. Doing something like that as a US citizen is tantamount to renouncing citizenship. Depending on how long ago she traveled I could see this causing issues trying to claim good faith. People who think they are citizens don't renew their foreign passports and leave the country with them.
posted by sbutler at 3:21 PM on January 19, 2011 [2 favorites]

Doing something like that as a US citizen is tantamount to renouncing citizenship.

Oops, I'm wrong. Don't know where I read that...
posted by sbutler at 3:24 PM on January 19, 2011

Definitely not a lawyer, but having an expired green card does not mean that she's no longer a permanent resident. The card expires, but the visa status does not (unless she did something else on the list of things you may not do as a green card holder). In fact, it looks like green cards issued before 1988 did not originally have expiration dates on them, though they do need to be replaced with newer cards now. I don't know when she originally got her green card, but if it was early in her marriage or even before it, she could have had one of those cards.

This page on the U.S. Citizenship and Immigration Services page lists ways that you can lose your permanent residency, and a bigger problem than the expired green card may be if she's claimed to be citizen on her taxes or when she worked previous jobs. When I applied for citizenship, they asked if I had ever claimed to be a citizen, and the info page for filling out naturalization forms says that you may need to submit tax returns.
posted by capsizing at 4:07 PM on January 19, 2011

I think a little leeway is allowed when you immigrate with your parents at age 9.

Ahem. We don't even give leeway to orphans who came to the US at 5 months (although she is still here in detention fighting the deportation orders). Obviously there was a drug charge (stealing a purse containing two bottles of prescription pills) in that case that we don't have here, but the point is that the US government doesn't care how long you've been here or how old you were when you arrived.

To address the question, brainmouse is right: immigration lawyer yesterday. Working illegally or attempting to work illegally (if it is, in fact, illegal for her to work, that's something she needs the lawyer to tell her) could well hurt her case now and/or land her employer in very hot water.
posted by zachlipton at 4:57 PM on January 19, 2011

ICE isn't going to give her leeway (if she is indeed out of status, which none of us know including her) but we should give her leeway, I think. Yeah, when you're 9, you don't always know exactly how immigration law works. And given the widespread misinformation that marriage to a citizen automatically confers citizenship, I cut her some slack for continuing not to know what her status is.

But she absolutely needs to know whether she is in or out of status, and the only person who can help her ascertain that is an immigration attorney. The Italian consulate may be a good source of leads if everything else comes up dry.

Yes, this is going to come up (if she is indeed out of status) and it is not going to go away. If she is in status and this is some error, she needs to know it and correct it. Getting a lawyer isn't an option, it's a necessity.
posted by Sidhedevil at 5:44 PM on January 19, 2011

And no, she is almost certainly not going to be able to get a job until this is cleared up. Except an off-the-books job. Which, if it turns out she is out of status, could be a significant mark against her, so "get an off-the-books job and save up for the immigration lawyer" wouldn't be at all a prudent move.
posted by Sidhedevil at 5:46 PM on January 19, 2011

I studied immigration law, but IANYL.

My first advice is for everyone to take a deep breath. Yes, she may be in a difficult situation, immigration-wise, that must be addressed, and directly, but these things take time and patience.

First, as several people have pointed out, to say that her green card expired does not necessarily mean her residence status expired.

Second, do retain a lawyer as soon as you can. The recommendation rkent gave above is the best place to start in NY. Keep in mind this is not something you want to entrust to someone you don't have confidence in. (There are countless cases of people being screwed by bargain-basement incompetent or unscrupulous immigration lawyers - I have personally dealt with clients whose cases are the aftermath of such things, and just missing filing dates can put individuals in very difficult circumstances.)

As for her particular situation -- and starting with the caveat that immigration law is notoriously tricky and can always be a minefield -- she is in a comparatively good situation to have her status regularized and possibly get citizenship if she wants. She came here (presumably legally) as a child, had (at least had if not still has) legal status, married a US citizen, has a US citizen child -- all points in her favor. It may take a long time and several bureaucratic hurdles, but in the end she should be OK.
posted by leticia at 10:21 AM on January 20, 2011

whoops. can't edit my failure to close the tag.


posted by leticia at 10:22 AM on January 20, 2011

D'oh. That would be <em> tag. Grr. Bad HTML-fu today.
posted by leticia at 10:24 AM on January 20, 2011

Hi, I'm an immigration lawyer in NYC. There's a lot of good advice on this forum so far.

1) Just because the physical green card is expired does not mean that your have lost your status as a lawful permanent resident (LPR). The status continues. It is possible to lose LRP status, however. The most common way is by abandoning it, i.e. leaving the USA to make your home in another country. USCIS on their website says leaving for a year or more without a reentry permit means you lose your status but this is not exactly right: if you do leave for that long they will presume that you abandoned your status and you will have to affirmatively show that your trip was for temporary purposes and you always intended to come back.

2) You may be a citizen. LPR children can derive citizenship automatically through the naturalization of their parents. They may not even know they are citizens. Did one or both of your parents become citizens before you turned 18?

3) If you are not a citizen and have ever claimed that you are, even unwittingly, this could end up being a big problem. Especially if you have ever voted. This would actually, believe it or not, make you deportable. There is a very limited exception that may or may not apply (just thinking you were a citizen is not enough).

4) The Legal Aid Society (mentioned above) is good. Another great resource is Catholic Charities. They run an immigration helpline at 1-800-566-7636 (Monday - Friday). You can also try the Immigrant Defense Project hotline (212) 725-6422 (Tuesdays and Thursdays).

5) In immigration don't ever assume that because you've been here practically your whole life and have a US citizen spouse, child, etc., that everything will be ok. I deal with people every day who get deported despite all those things. Especially if a criminal record is involved. A LPR can become deportable for very minor crimes including jumping a subway turnstile or getting into a fight. While this may not apply to you, you should still speak to a lawyer as soon as possible.

Good luck!
posted by quine's_gavagai at 9:48 PM on January 23, 2011

I have to underscore quine's_gavagai's point #5, above, and to emphasize that in my answer above, I did not in any way mean to suggest that having all these US citizen ties would make you un-deportable. I only inteded to say is that these are points in your favor, but quine's_gavagai is absolutely right, and her/his advice is spot on.
posted by leticia at 8:16 AM on January 25, 2011

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