By Robert L. Reeves and Nancy E. Miller
As Congress continues to debate various proposals for immigration reform, it is a good time to remember what is available today may be more beneficial than the possible relief that immigration reform may bring – in whatever form it takes – assuming it becomes a reality.
Since 2000, Congress has tried several times to pass some type of immigration reform. Some proposals died a quick death in the aftermath of national tragedies. Other proposals for positive relief morphed into draconian measures that would have made, and, in some cases, did, in fact, make, the law harsher than it was before the proposals were made.
Congress is, again, discussing how to fix the immigration system. Many proposals have been made and it is expected that both pro and anti-immigration forces will put forth many more changes before any bill leaves Capitol Hill and heads to the White House. However, it is assumed that a final bill will include the elimination of the (F-4) Family-based brother and sister method of immigrating. F-4 has long been the target of those opposed to “chain immigration”. That may be the stick they hold out in order to allow the carrot of relief in other areas. However, the proposal to eliminate this relief does address humanitarian concerns for those who have pending petitions in this category. It is possible that petitions already filed by United States citizen brothers and sisters will be grandfathered and remain valid. It is also possible that such petitions may be given additional numbers to allow the backlog to be cleaned up in a shorter period of time than would now be possible.
Therefore, any United States citizen who wants to help their siblings share the American Dream should file those petitions now.
Any discussions on reform have stressed that those who either came to this country without papers or overstayed their visas should not be able to get their green card before those who have been lawfully waiting “in line”. As such, the proposed avenue for a green card for those out of status includes a 10 to 13 year wait before applying for a green card. Once that avenue for relief has been selected, no other method of getting a green card will be possible. In other words, if an undocumented immigrant files for reform and later marries a United States citizen (which would normally make them immediately eligible for a green card), she will have to stay with the 10 to 13 year program to get her lawful permanent resident status.
For someone with no other relief available, the possibility of some relief is a blessing not to be discounted. However, how about for those people who could apply for and legalize their status? Those people who could legalize now should apply for relief that is immediately available now.
Undocumented immigrants who did not enter with papers (or who entered as crewmen or on fiancé visas and did not marry the petitioner) are now eligible to get their green cards through the provisional waiver program. The program allows for the filing of the waiver while still in the U.S. and the non-citizen can fly home after adjudication with the knowledge that the waiver has been granted. The immigrant visa based on a pre-approved waiver is issued in the non-citizen’s home country in only a few days.
Even undocumented immigrants with a criminal conviction may be eligible to adjust their status or consular process with a waiver for that ground of inadmissibility. Alternatively, they may be able to obtain post-conviction relief that will enable them to take advantage of possible reform.
For those undocumented immigrants who have lived in the United States for at least 10 years and whose United States or lawful permanent resident parent or children would suffer exceptional and extremely unusual hardship if they had to leave, cancellation of removal is a viable option (green card granted by an immigration judge).
Immigration reform may be the only option for those with no other way out but other existing options may be better for those who qualify. Consultation with an experienced and knowledgeable immigration lawyer is the best way to determine what your options really are.
