The New York Times reports today (here) that the US government cannot track when people stay longer that they are authorized. This is no surprise to immigration lawyers and foreign nationals. US immigration officials estimate that 2.9 million people entered the US last year on temporary visas. The government has no way to know for sure, but estimates that "several hundred thousand" of those are still in the US, even though their status expired.
The NYT article focuses on Mr. Hosam Maher Husein Smadi. He is from Jordan, and is accused of plotting to bomb an office building in Dallas. Mr. Smadi entered the US as a tourist, and this status expired in April 2008. However, the article says that that
Mr. Smadi, like many tourists who overstay visas, was able to fade easily into society and encountered few barriers to starting a life here, according to court documents and people who know him. He enrolled in high school, obtained a California identification card, landed jobs in two states and rented a string of apartments and houses. He bought at least two used cars, and even procured a handgun and ammunition.
The article explains how difficult it is to keep track of whether people depart.
They have not yet found technology to support speedy exit inspections at land borders. And airlines balked at an effort last year by the Bush administration to make them responsible for taking fingerprints and photographs of departing foreigners.
At the moment, departing visitors hand over a document called an I-94, to show that they left the US. However, sometimes visitors forget to do this, especially if they depart via land borders. Further, even if they had the resources, immigration officials would have a very difficult time finding the people that intentionally overstay.
The New York Times has a discussion this week on the DREAM Act. This legislation, sponsored by Senators Richard Durbin (D) of Illinois, and Richard Lugar (R) of Indiana, addresses the situation faced by young people who were brought to the United States years ago as undocumented immigrant children and who have since grown up here, stayed in school, and kept out of trouble.If enacted, the DREAM (Development, Relief, and Education for Alien Minors) Act would
Permit certain immigrant students who have grown up in the U.S. to apply for temporary legal status and to eventually obtain permanent status and become eligible for U.S. citizenship if they go to college or serve in the U.S. military; and
Eliminate a federal provision that penalizes states that provide in-state tuition without regard to immigration status.
Supporter of the legislation argue that
It would give lawful status to children brought to America by events beyond their control. They have grown up here, are fully integrated, and know no other country. Instead of being rounded up and deported, they will contribute to America, starting when they meet requirements that they go to college or serve in the military.
Opponents say that it is an amnesty
designed to politically leverage the dilemma of the most sympathetic group of illegals into a more general amnesty.
The most recent status of the DREAM Act is that a bipartisan group of senators introduced it to the latest Congress on March 26, 2009. AILA (the American Immigration Lawyers Association) estimates that 65,000 undocumented young people who have spent their childhoods in America would be impacted by this important piece of legislation annually.
The College Board, the nation's recognized leader in assisting students in the transition to higher education, recently issued a report supporting the DREAM Act.
Many US citizens get married to foreign nationals who are undocumented, i.e. not legally in the United States. The US citizens wonder if they can "sponsor" their spouse to get lawful status. The answer depends on various facts, so it is important to review the specific details of your case with an experienced immigration attorney.
In general, if you entered the US legally and overstayed your authorized stay, your US citizen spouse can petition for you to become a permanent resident. All the usual requirements to become a permanent resident must be met, including showing good moral character, completing a medical exam, providing an Affidavit of Support, etc. (see blog posts and website links below). However, if you entered using the Visa Waiver Program (VWP), you should file for permanent residence before the 90-day period of authorized stay ends.
If you entered the US without inspection, you will have a harder time getting permanent residence. You cannot complete the process in the US because you are ineligible for Adjustment of Status. You need to apply at a consulate in your home country. Your spouse will need to request a waiver of inadmissibility on Form I-601. Your spouse needs to show that it would cause "extreme hardship" if you were not allowed back to the US. "Extreme hardship" is a very high standard - it needs to be greater than the normal hardship that a person would endure if they were separated from their spouse involuntarily. This includes showing why your spouse could not move to your country to live with you there.
If you entered without inspection over one year ago, OR were ordered removed from the US AND attempted to enter again without inspection, there is no waiver until you have been outside the US for 10 years.
If you are an undocumented immigrant married to a US citizen, please contact an immigration lawyer about your case. Do not attempt to file the paperwork yourself, especially if you entered without inspection (EWI), because there are many facts to analyze. The date that you entered, any prior immigration paperwork that was filed for you, your criminal history, and many other factors are important. Also note that the waiver process can take months or even years before you get a decision.
