GUEST ARTICLE – COMMON IMMIGRATION LAW MISCONCEPTIONS

By Charla Haas*

* Charla Haas is a partner in the Nashville office of Siskind, Susser, Haas & Devine and can be reached by e-mail at chaas@visalaw.com.

Over the years, we repeatedly hear from our clients, non-immigration attorneys, and the general public common misconceptions about immigration law.

Perhaps, the most common misconception is that if a foreign national marries a United States citizen or a lawful permanent resident, that the foreign national is automatically “legally” entitled to remain in the U.S or come to the U.S if the foreign national is outside the country.  In fact, nothing about the person’s immigration status changes as a result of the marriage, except the ability to apply for permanent resident status or an immigrant visa based upon an approved visa petition. The foreign spouse must demonstrate that he or she meets all other requirements for becoming permanent residents.  Some spouses of United States citizens or permanent residents may be permanently or temporarily barred from obtaining permanent resident status on the basis of criminal conduct, disease, possibility of becoming a public charge, and many other grounds.  Spouses of permanent residents, who were not eligible to immigrate with their spouses, are subject to a long wait of 4 to 6 years before their “priority date” becomes current under the U.S. immigration quota system before they are eligible to apply for residency.  However, if the permanent resident spouse becomes a citizen, then a visa becomes immediately available.

Hand in hand with the incorrect belief that marriage to a U.S. citizen or lawful permanent resident spouse confers some sort of immigration status on a foreign spouse is the erroneous belief that if a foreign national has a United States citizen child that the foreign person is permitted to stay in the United States or somehow automatically becomes a U.S. citizen or a permanent resident.  In actuality, a U.S. citizen child may not file a visa petition for a foreign parent until after the child turns 21 years old. The foreign parent may also be permanently or temporarily barred from obtaining permanent resident status on the basis of criminal conduct, disease, possibility of becoming a public charge, and many other grounds of inadmissibility.

Even though most people think otherwise, it is possible for spouses, parents and children of United States citizens to be denied entry to or to be deported from the United States. Also, contrary to popular belief, persons who entered the United States without inspection may not adjust status to permanent resident even if they have U.S. citizen or permanent resident spouses, parents or children, unless a visa petition or labor certification was filed prior to January 14, 1998.  Upon leaving the U.S. to obtain an immigrant visa at a consulate, these persons may become subject to a three year, ten year or permanent bar to reentering the U.S. depending upon the length of their unlawful presence in the U.S.

Another very pervasive misconception is that the visa in a foreign national’s passport controls how long that person is permitted to remain in the United States after entry.  The visa only grants permission to apply in person at a border inspection point to enter the U.S. during a certain period of time. For example, a visa may have notations that indicate that it is a multiple entry visitor’s visa that expires in five years.  The five year expiration date means that the person may apply at the border multiple times within that five year period to enter the U.S. as a visitor.  Even with a visa, the person may be denied entry by the border inspector.  When the foreign national appears at a border point with the visa, the INS inspector will query the person to determine if the person is admissible, whether the person is coming to the U.S. for the purpose stated in the visa, and how long the person intends to remain in the U.S.  If everything is in order, the officer will give the person a white card called an I-94 with a stamp showing the date and class of admission (such as visitor, student, temporary worker) and the expiration date of the I-94.  It is the expiration date on the I-94 that determines how long someone may remain in the United States.

Many U.S. employers incorrectly assume that they may employ any foreign worker for any job merely by sending in a form to the immigration service.  However, it is actually a difficult process for a foreign person to obtain authorization to work in this country.  In general, the foreign person must be a worker of distinguished or extraordinary ability, have a bachelor’s degree, or be skilled in an occupation for which the Department of Labor has certified that there is a shortage of U.S. workers. 

Many people are under the mistaken impression that foreign people who have been physically present in the U.S. for seven or ten years automatically become “legal.”  Under the law before 1997, a foreign person who could demonstrate in deportation proceedings seven years of physical presence in the U.S., good moral character for the entire seven years, and extreme hardship to themselves or a U.S. citizen or permanent resident spouse, parent or child, could apply for a form of relief called “suspension of deportation.”  If granted, the person would become a permanent resident.  However, after 1997, a person in removal proceedings may be eligible to apply for “cancellation of removal” by showing ten years of physical presence, ten years of good moral character and extreme hardship to a U.S. citizen or permanent resident spouse, parent or child.

Unfortunately, many people think that foreign-born persons may just submit an application for permanent residency based on the fact that they are good hard workers or good responsible people.  In reality, these people must fit into one of the family or employment based immigration categories, or be eligible for cancellation of removal, asylum or the diversity visa lottery. 

These are only a few of the misconceptions people have about immigration law.  To become legally able to live and work in the U.S. is not simple and virtually never “automatic.”

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