At its March 22 meeting, the club heard from Maureen McSorley, a Windsor immigration attorney, about the intricacies of becoming a legal resident.
McSorley said that there are approximately 11 million undocumented immigrants in the United States. Half are those entered the United States without inspection/authorization and the others are visa overstays – they entered the United States legally and then never returned.
According to McSorley, it can be very difficult for undocumented individuals to obtain legal status in the United States. Even for those who are married to U.S. citizens, the process is quite onerous. Unless you entered the U.S. with a valid visa, someone filed a petition for you before April 30, 2001, or your family member is in the military, you have to go back to your home country to get a green card through a process known as consular processing.
The moment you step foot on your home country’s soil to do consular processing, you have a 10-year bar; you can’t come back for 10 years, if you lived in the U.S. for more than one year without authorization. This is called the unlawful presence ground of inadmissibility. You can apply for a waiver for this but only if you can show that your U.S. citizen or U.S. legal permanent resident spouse or parent would suffer extreme hardship should the undocumented family member not be admitted to the United States.
Surprisingly, children are not “qualifying relatives” for this waiver. So hardship to the children is not per se a factor. If the waiver is approved, the person goes to the U.S. consulate in their home country to be interviewed, undergo a background check, and get a medical exam. If they are approved, they can come back to the U.S. as a legal resident.
However, other grounds of inadmissibility could be found by the consular officer once the applicant is abroad. One such ground of inadmissibility which is being regularly encountered is that of “alien smuggling.” This is an issue if the applicant coming to the United States brings their child or other family member with them when they come here. McSorley often sees cases where a mother, often fleeing abuse, has brought her children here, not wanting to leave them behind because there was no one to care for them in Mexico or their lives would be in danger if left in the hands of the abuser. That mother would be deemed inadmissible due to alien smuggling, which would require another waiver.
If you go to the interview in Mexico after getting a waiver for unlawful presence, and you are found to have brought your children through alien smuggling, you will have to file a second waiver. It is currently taking USCIS close to 1.5 years to adjudicate these waivers. The applicant would have to remain in their home country until this waiver is approved, meaning that the family is separated for this very long period of time. During that wait period, the family has to make the decision either to leave the children in the U.S. or take them to the home country to wait for the decision with their parent.
Along with other stress factors, going to the home country, such as Mexico, can be dangerous. If you relocate to Mexico from the U.S. many are targeted by criminals who believe that they have money or have family members with money in the U.S.
McSorley says that consular processing is extremely stressful on the family members, most of whom are U.S. citizens and U.S. legal permanent residents. Not knowing if your loved one will return causes the family excessive fear and anxiety. If something goes wrong and a waiver is not approved, the family member could potentially not reenter the U.S. for 10 years.
The anxiety surrounding how to handle the financial hardship of raising a family as a single parent, often after losing the income of the primary breadwinner in the family, is daunting. The emotional trauma of trying to cope with their children’s trauma at losing their loving parent is terrible. This complex process of getting legal residence is the best-case scenario for the undocumented.
“Comprehensive immigration reform,” long sought after by public interest groups and politicians, should provide fairer and more humane solutions. However, a consensus has not emerged on what those reforms should be.
To contact Maureen McSorley, send an email to: maureen at mcsorleylaw.com
— Rick Massell