Special Report: Immigration in Colorado

March 28 2013, 4:05 PM

Immigrants to the United States—both legal and illegal—face tough, and sometimes impossible, legal situations. In anticipation of our April feature on how immigration affects Colorado, we present the following three scenarios, pieced together by local immigration attorney Laura Lichter from true client stories, to illustrate some of the most common conundrums people encounter within the current U.S. immigration system.

[Hypothetical Situation No. 1]

The Permanent Bar

An infant is brought to the United States by his parents. The family enters illegally—or in immigration jargon, “without inspection.” The boy, obviously, had no choice in the matter. When the boy is still a minor, his family leaves the United States to briefly visit relatives in their home country. After the visit, the family enters the United States illegally a second time; again, the young boy has no say in the matter. Years pass. The boy attends school in the United States, meets a woman, falls in love, marries, and starts a family. His wife is a U.S. citizen. As a U.S. citizen, she petitions immigration authorities to recognize their marriage as valid, which would allow her husband to apply for legal status.

If the petition is approved, the man will need to travel abroad (usually to the U.S. Department of State consulate in a person’s home country) for something called consular processing—because he is in the country illegally, he cannot apply for a green card from within the United States. Here’s where the problem lies. Because this young man entered the United States illegally twice, he will face something called the “permanent bar” when he tries to apply for legal status. This permanent bar means he will not be able to re-enter America for 10 years, no matter the hardship his absence places on his wife and children living in the United States, and no matter the fact that, as a minor, he did not choose to enter the country illegally either time. (Other individuals who also entered the country illegally, but only did so once instead of twice, will also have to depart the United States to apply for a visa or a green card, but there is a waiver for their past unlawful presence.)

[Hypothetical Situation No. 2]

Colorado, Marijuana, Immigrants, and the Federal Government

A young woman wants to apply for a green card. She entered the country lawfully on a student visa to attend college years ago. She obtained an advanced degree and now has a job offer from a U.S. employer, who wants to petition for permanent residency for her. She is regarded as a smart, dedicated individual, and there is little doubt that she would be a valuable asset to her company and community.

The problem is that while she was a college student in the United States, she was arrested and convicted for possessing marijuana. She complied with all of the court’s penalties and never had any further run-ins with the law.

Under the current U.S. immigration system, a person convicted of violating any controlled substance law faces a lifetime bar to obtaining lawful permanent status (a green card) in the United States, unless the green card applicant can prove the amount of marijuana (the law does not allow for any other illicit-drug possession) she possessed was 30 grams or less.

In this particular situation, the police records are old and incomplete, and because the young woman quickly pled guilty to the offense, the court records are sparse. Because of the lack of official documentation, the young woman can’t prove the amount of marijuana she possessed was less than 30 grams, and she will be barred from getting a U.S. green card for the rest of her life. Her student visa will expire shortly after graduation, and she will likely have to leave the country.

[Hypothetical Situation No. 3]

Business School

A local business owner employs a large number of foreign-born workers. The work is unskilled, backbreaking, and difficult. The owner has a difficult time attracting U.S. citizens, so she has come to rely on her dedicated team of foreign nationals. Perhaps she didn’t know that many of them lacked status. But once their situations become clear, she decides to take whatever steps necessary to remedy their status problems. Unfortunately, she is going to face two intractable hurdles.

First: Even if she successfully petitions for her employees, demonstrating with ample documentary evidence that there is a shortage of American workers in her particular industry, there is a cap on the number of individuals that can get their green cards each year as unskilled laborers (unskilled laborers usually can only get a seasonal visa, called an H2 visa, which expires after a set amount of time). And because the quota for this type of green card is so low, her employees face a wait of several years before their petitions become current and ripe for processing.

Second: Her employees currently lack status, and therefore won’t be able to complete the process in the United States. They have to apply for status from abroad. However, once they leave, the vast majority will face the 10-year permanent bar (see above) because they have entered the country illegally more than once. For some, this 10-year bar will be absolute. For others, the bar could be waived, but only if the undocumented immigrant can demonstrate that his or her absence will create an extreme level of hardship to a U.S. citizen or green-card-holding spouse or parent. For example, if an undocumented immigrant’s husband, who is a U.S. citizen, is sick and she is his only caregiver, a waiver might be granted.

This employer wants to find a way to “do the right thing” for her trusted employees and for herself, but she also wants a system that allows her to plan her business endeavors with some precision. Having the paperwork in progress does not provide status and does not allow her to employ her staff. If she were to be audited by ICE, she might face stiff fines and criminal charges for employing undocumented workers. Under the current immigration system, there is no solution to her problem.

Read more about immigration in our May 2013 issue.

—Image courtesy of Shutterstock.