Many people unfamiliar with immigration law are under the misunderstanding that it is a straightforward, simple process to petition for a family member and obtain perma-
nent resident1 status. Unfortunately, it is not.
Family Matters
BY JUDY FLANAGAN & FAE SOWDERS
Delayed, Slow—and Often Unavailable
To start, only certain close family members can file a visa petition
for an immigrant family member. Grandparents, aunts and uncles,
cousins, and nieces and nephews, for example, cannot petition for
a family member. Permanent residents2 may only file for their
spouses and their unmarried children, not their parents, brothers
and sisters, or their married children.
Some family members, or “
immediate relatives,” have immediately available visas, as they are not subject to
numerical limitations, and therefore do
not have to “wait in line” for an immigrant visa. An immediate relative, however, is very narrowly defined: a spouse,
parent (of a U.S. citizen over 21 years
of age), or an unmarried child (under
21 years of age) of a U.S. citizen. 3
within the annual numerical limitation.
In some categories, the wait for a visa is more than 20 years, and
in some the State Department has simply deemed visas “
unavailable.” The results are untenable, and unintended. For example,
while Congress created a category for U.S. permanent residents’
spouses to join them in the United States, under our current quota
system, a lawful permanent resident who marries a Mexican citizen
will be waiting more than 25 years to be reunited.
Such a delay is not just unconscionable but unrealistic; couples
do not stay apart until their silver anniversary. As millions of unauthorized migrants attest, these reunions occur outside the auspices
of the law. Often lost in the rhetoric of
immigration passions is the simple fact
that, after decades of a law that does not
reflect political, social or economic patterns, most of the unauthorized immigrants have closer familial ties to citizens of our country than to any other.
In some categories, the wait
for a visa is more than 20
years, and in some the State
Department has simply
deemed visas “unavailable.”
Under our current quota
system, a lawful permanent
resident who marries a
Mexican citizen will be
waiting more than 25 years
to be reunited.
Everyone Else Waits—
Sometimes Forever
The list of those who have decades to
wait before they can “legalize” their
status is long. It includes unmarried
sons or daughters of U.S. citizens, 4
spouses and children under the age of
21 of permanent residents, 5 unmarried sons or daughters (i.e., 21
years of age or older) of permanent residents, 6 married children of
U.S. citizens, 7 and brothers and sisters of U.S. citizens. 8 Spouses
and children of the lead beneficiary in these preference categories
may also eventually immigrate.
These visa categories are subject to statutorily defined annual
quotas. 9 Due to these quotas and heavy demand for visas in the
preference categories, there are huge backlogs in availability of
visas. 10 Priority dates do not necessarily progress in real time. 11 The
rate of progression for priority dates often varies, making it impossible to predict how long it will take before a visa is available. At the
approach of each fiscal year, September 30, it is not unusual to see
retrogression in priority dates, which is done to keep visa issuances
JUDY FLANAGAN has practiced law in Arizona since 1988, and exclusive-
ly in immigration law since 1998. She is an expert in family and deportation
defense matters.
FAE SOWDERS received her J.D. from The Catholic University of America,
Columbus School of Law, and has practiced in Phoenix since 2004.
They can be reached at j.flanagan@jfimmigration.com, (602) 667-6200.
The Process Is a Labyrinth
If a migrant does fit into one of the
restricted categories that qualify for a
U.S. visa, the battle is not won, but just
begun. Filing the immigrant visa petition is only the first step in applying for
permanent resident status. Its adjudication often can take years. The visa must
be available (so the foreign national
must be an immediate relative or be in
a visa category where the priority date is
current). 12 An applicant for admission must qualify financially
through the filing of an enforceable Affidavit of Support by the
petitioning relative or other sponsor. 13 The foreign national, or
alien, must not be “inadmissible” to the United States14; an alien
may be deemed inadmissible if he or she has committed certain
crimes, cannot support himself or herself, has registered to vote, or
has claimed to be a U.S. citizen, for example. 15
If already in the United States when the opportunity to immigrate occurs (i.e., through marriage to a U.S. citizen), the immigrant cannot “legalize” unless he or she entered the United States
legally16 or have had an immigrant visa petition or labor certification petition filed on her behalf on or before April 30, 2001.17
Immigrants who have entered the United States unlawfully and are
not beneficiaries of a petition filed on or before April 30, 2001,
must leave the United States and undergo an interview at the
American Consulate or Embassy in their country of origin to determine the bona fides of their application. Regardless of eligibility,
the applicant will be penalized with either a 3- or 10-year bar to
admission if they were in the United States unlawfully for more
than 180 days. 18 Exceptions to the draconian bar to re-entry are
only available for those who can establish “extreme hardship” to
their U.S. relative if the bar remains. 19 AZ AT
