by Arturo A. Hernandez, III, Immigration attorney and advocate
Hernandez Law Firm, LLC
The basics of immigration law and advocacy are vast and nearly impossible to summarize in a few brief pages. Almost 250 years ago Thomas Jefferson penned these immortal words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” What many forget is
that at the time of his writing, he was not an “American”. There was no “America” to speak of. It was not even a nation, it was a colony, which
Merriam-Webster defines as: “a body of people living in a new territory by retaining ties with the parent state” He was a British citizen who became a U.S. citizen by rebellion. Not necessarily a legal form of immigration.
What Jefferson was claiming in the Declaration of Independence is that “all men” (even non-Americans) were entitled to, struggling for, and fighting to enshrine those things that we are all entitled to. Life – the inalienable right to live life to the fullest, to embrace those things that were given to each and every one of us. Liberty – the inalienable right to enjoy various social, political, and economic rights and privileges,
also the right to travel which was also restricted by the crown at the time of the Declaration. Finally, the pursuit of Happiness – the inalienable right to enjoy life, to live life to its fullest, to provide a safe and happy environment for one’s self and family.
What makes his hope; his argument different from the current persons wishing to immigrate to America? Why are those who fought for change through the American Revolution lauded, and a current victim of violence, oppression, poverty; or a person that is looking to further their job, their careers, advance their skills and help the U.S. economy at the same time treated with disdain? Who gets to choose? Who acts
as judge and jury as to who is worthy? There is no clear answer, just as there is no easy description of Immigration matters and advocacy
today. This article will not delve into the current issues but provide a basic overall guide as to immigration matters. Immigration law and advocacy can be broken down into three (3) major categories and a few other non-common, “not likely” categories. They are: Family based immigration, Business immigration, Refugee and Asylum.
Because more people qualify than there are visas available through the preference system each year, many close family members of U.S. citizens and lawful permanent residents end up waiting in significant backlogs. For example, spouses and minor children of lawful permanent residents must wait more than two years to unite with their families, while the adult children of lawful permanent residents could wait more than 10 years.
Both Family and Business immigration can be divided into two categories each, Immigrant and nonimmigrant matters. When an individual seeks to immigrate to the United States, they generally petition based on either the desire to remain in the U.S. permanently (immigrant) or only temporarily (nonimmigrant). Most family-based petitions are immigrant petitions, while a large portion of the business based
petitions are non-immigrant based. Realistically, many non-immigrants use this as a stepping stone to adjust to an immigrant-based status. The difference between asylees and refugees is largely procedural. A person who requests asylum in the United States is called an asylee. A person who requests protection while still overseas, and then is given permission to enter the U.S. as a refugee, is called a refugee.
Each year, the United States grants visas to a limited number of people who have close family ties to U.S. citizens and lawful permanent residents. Legal immigration is essential to ensuring the continued vitality of the American economy and society. Many small businesses are run by immigrants who came to the United States through the family immigration system, and studies show immigrants are more likely
to be entrepreneurs than those born in the United States. These are the businesses that promote the renewal of city neighborhoods and commercial districts, while immigrants and their families strengthen communities and bring diversity to local cultural resources.
Qualified family members in the United States can seek permission to bring in certain eligible foreignborn family members. U.S. citizens can petition for their spouses, parents, children, and siblings. Lawful Permanent Residents (LPRs, or “green card” holders) can petition for their spouses and unmarried children. There are always visas available for the spouses, parents, and minor children of U.S. citizens, but for all other family categories there are annual numerical limits. In all cases, the petitioning family member in the United States must demonstrate an income level above the poverty line and must commit to support the family member they are seeking to bring to the United States. The foreign-born persons wishing to immigrate must meet eligibility requirements as well.
Despite the high demand for visas that result in long waiting periods, in most years, some visas allocated by statute are not used due to bureaucratic delays in processing. Under current law, these visas are wasted and cannot be used in future years. This is the most current information for the numerical limits of family-based petitions as of April 29, 2018 according to the U.S. Secretary of State’s
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
Immigration practitioners generally advocate for the following reforms to the current family-based immigration system: reduce the multi-year wait for a visa to become available, recapture family-based visas that were not used in past years, allow law-abiding families to reunite with loved ones within a humane and reasonable time period, and treat same-sex families equally in all aspects of immigration law where a qualifying family relationship is required.