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Why don’t they become legal?

Feb20
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Why don’t they become legal?

As the immigration debate continues in Congress and on social media, I keep seeing similar versions of the same question: Why doesn’t this undocumented person apply to become legal and why are they mooching off the American people? In this post, I am going to address a  few variations of that question:

  1. Why young people who have DACA (Deferred Action for Childhood Arrivals) haven’t just become citizens:
  2. Why didn’t President Obama create a path to citizenship for DACA recipients?
  3. Is it true that many undocumented citizens can receive public benefits for free?

To become a U.S. citizen (other than by birth), one must first become a Lawful Permanent Resident (“green card” holder). Only after five years as a Permanent Resident can you apply to become a citizen. Thus, the obvious next question: how does a person become a Permanent Resident? There are three primary options to do so:

1) Family-based petitions. This means that a U.S. citizen or Permanent Resident parent, spouse, adult child, or sibling files a “petition” for you. Depending on your country of citizenship and on the category that you fall into, the wait will be anywhere from 1 – approximately 30 years before you can use that petition to take the next step – applying to become a Permanent Resident. That usually works for people living outside the U.S., but for those who have been here, it may not be possible if they entered the U.S. illegally, even if they were minor children when they did so.

2) Employment-based petitions. A U.S. employer can similarly sponsor you, but generally only if you are in a profession requiring an advanced degree or unique skills (ex:  doctors, scientists, corporate executives, world-class athletes, coaches of Olympic sports teams, etc.). Even then, the potential employer must generally obtain a labor certification to prove that they made good-faith efforts to hire a U.S. citizen for the position, but no qualified applicants applied.

3) Diversity visa lottery. Every year, the U.S. government selects 50,000 people worldwide who enter a lottery and pass background checks to come to the U.S. as Permanent Residents. This lottery, however, is only available to people from countries that traditionally send few people to the US – so, for example, people from countries such as Mexico, the Philippines, China, Guatemala, India, El Salvador, and other countries that send larger numbers of immigrants to the U.S. do not have this option.

Note: The current Administration has actively sought to eliminate or dramatically limit Options #1 and #3. The new term being used in the attempted re-branding of Option #1 (family-based immigration), which has been the basic principle of U.S. immigration law for over a century, is the pejorative term “chain migration”. If those two options are in fact eliminated or curtailed, legal immigration to the U.S. will be significantly reduced.

The KEY POINT to all of the above: If you do not qualify for one of these 3 options, then there is no “line” to get into to legally become a Permanent Resident and eventually a U.S. citizen. So, if you are not fortunate enough to have, say, a U.S. citizen spouse, parent, or child (over the age of 21) or for example, a Ph.D. in physics, you very likely can never become a citizen of the United States.

Many people ask why President Obama, when he established DACA in 2012, did not just create a path to citizenship for these young people at that time. The answer: earlier that year, Congress had for the 11th year in a row failed to pass the Dream Act, which would have done exactly that. The President acting through his authority as head of the Executive Branch cannot create a path to Lawful Permanent Residency (and eventual US citizenship). Only a law, passed by Congress and then signed by the President, can accomplish that. So President Obama on June 15, 2012 created the more limited DACA program through Executive Action – which is why President Trump, as the new President, was able to end the program, also without an act of Congress, last fall.

Finally, there is a common misconception that undocumented immigrants can receive many public benefits, for free.  In reality, only a U.S. citizen or a Lawful Permanent Resident (green card holder) can receive almost all types of public benefit – including Medicaid, Medicare, SSI disability, Social Security payments for seniors, TANF, and food stamps. The irony: most undocumented immigrants work under made-up Social Security numbers and so receive a paycheck from which Social Security, federal income taxes, and state income taxes are withheld, and of course they pay the same local sales and property taxes as anyone else through retail purchases, pass-through costs of apartment leases, etc. Same of course goes for the approximately 800,000 current DACA recipients, who are authorized to legally work in the U.S. But very few of those employees, despite paying in to the system, will ever receive those public benefits listed above, that are paid for by the money withheld from their paychecks. So they are propping up our federal and state government entitlement programs because they pay in but won’t ever take out.

The following are the public benefits that undocumented immigrants can receive in United States:

1) Public education for children in grades K-12. This was definitively established by a 1982 Supreme Court case, Plyler v. Doe. The Supreme Court in its reasoning explicitly stated that it would not serve the overall public good of the U.S. to leave many thousands of children uneducated.

2) Emergency room services, but only to the point where the patient is considered “medically stable”, at which point he/she is released. These services are not free, however, as in my job I meet hundreds of immigrant families who sacrifice over years to slowly pay off high emergency room medical bills.

3) WIC assistance. This is for milk, food, etc, and available only to pregnant mothers. The rationale is that the children in the womb will be U.S. citizens when born, and therefore it is in the long-term economic best interests of the nation to ensure that they receive adequate prenatal nutrition to improve their chances of being productive citizens in the decades to come.

4) Assistance from police if they are the victim of a crime and call for help. To their credit, the vast majority of Colorado Springs law enforcement officers take their duty to protect all people seriously. Chief Carey of the Colorado Springs Police Department and Sheriff Elder of the El Paso County Sheriff have made clear that their officers can’t do their most important job – keeping us safe by getting dangerous criminals off our streets – if a whole class of people (undocumented immigrants) is afraid to call 911 to report crimes that they witness or are victim to.

5) Assistance from a fire department. Rationale, besides the obvious moral one: If your house was next to that of an undocumented immigrant family, would you want the firefighters to let that house continue to burn, putting yours at risk of catching on fire too?

And that’s it. Those, to the best of my knowledge, are the only public benefits that an undocumented immigrant can receive in just about any part of the United States. As someone who works in a small satellite office in Colorado Springs and helps many low-income immigrant families per year, know that when I see the precarious economic situation of many of these families, I’d help them access other benefits if they could access them. But they simply can’t. Now, children of undocumented parents, born in the U.S., are U.S. citizens under the 14th Amendment  As such, those children can qualify for the same public benefits as any other U.S. citizen, if they qualify through economic need or disability. But their parents or undocumented siblings cannot.

If you or a family member or friend need legal advice or representation concerning immigration issue, please call the Joseph Law Firm for a consultation with one of our attorneys.

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