Okay, I’ve practiced immigration law; I shouldn’t have had to read the news articles on Elizabeth Olivas, who got stuck in her native Mexico and almost missed graduation due to a leap-year timing glitch, five times to figure out what they were talking about.
To listen to the news tell it, Elizabeth, an undocumented citizen of Mexico who arrived at age four and was about to graduate from high school, was facing a law that says that “children of immigrant parents have until 180 days from their 18th birthday to leave the United States for their country of origin and apply for a visa.” (That’s straight from the CNN article called “Indiana student returns home from Mexico after a visa mixup.”)
But with a little pressure on the consulate, according to these reports, Ms. Olivas applied for a waiver, got a visa, and can now graduate and live happily ever after.
Huh? Any layperson, especially of the anti-immigrant variety, might be left wondering things like why she had to wait for age 18 to get a visa in the first place; how it can be so easy for an undocumented person to leave the U.S., go to a U.S. consulate and say, “Please give me a waiver and a visa to resume my life in the U.S.,” and what this oddball law about turning 18 is.
So, let’s try to clear things up.
1) Elizabeth wasn’t just any undocumented immigrant. She was the unmarried daughter of a (naturalized) U.S. citizen. That makes her an “immediate relative,” and immediately eligible for U.S. lawful permanent residence (a green card). Why couldn’t she apply for it? First off, the news mention some processing delays in the initial paperwork (all too common). Second, for her to apply for her green card in the U.S., she would have to be eligible for “adjustment of status” — a procedure allowing immediate relatives who are in the U.S. after a legal entry to avoid returning to their home country to complete the application process. I’m guessing that Elizabeth and family entered unlawfully, across the Mexican border, in which case her only choice for applying for the green card is “consular processing,” via the U.S. consulate in Mexico.
2) When the news talks about her needing to apply for a “visa,” they’re not talking about the type of visa most people think of, as in a tourist or student visa. She was applying for an “immigrant visa,” which is the rough equivalent of a green card. (Immigrants use it to enter the U.S. and claim permanent resident status, and the actual green card arrives a few weeks later.) The CNN report that I picked on earlier was actually the only one I came across to mention this, stating that Elizabeth’s father “filed an immigrant visa petition for his daughter to gain legal status.”
3) The 180-day issue arises because people who spend excessive amounts of time in the U.S. unlawfully become “inadmissible,” that is, ineligible for any U.S. green card, visa, or other entry. That law applies to everyone over the age of 18, whether or not they are children of immigrants. If someone over 18 spends more than 180 days in the U.S. unlawfully, and then leaves (perhaps to attend a visa interview at a U.S. consulate), he or she is barred from returning for three years. A 365-day unlawful stay will get the person a ten-year bar on returning. Once Ms. Olivas turned 18, the clock started ticking, such that her unlawful presence would trigger a time bar. And due to her lawyer using a calendar that forgot leap year, she accrued 181 days of unlawful presence. Oops.
4) With 181 days of unlawful presence on Ms. Olivas’s record, her only hope for the U.S. consulate to approve her for an immigrant visa/green card was to apply for a waiver, which one can apply for only by showing that extreme hardship would result to U.S. citizen or permanent resident close relatives in the United States if the applicant were denied the visa. Again, Ms. Olivas was in a special position — many undocumented immigrants do not have qualifying relatives like this, and so would not be able to apply for the waiver.
That’s complicated stuff, I know. There’s a good reason the news reports didn’t devote as much space to this topic as I did. Nevertheless, with the fast-and-loose reporting about immigration laws that we see in this and other cases, it’s no wonder that strange rumors abound in this area. People start believing weird things, like that a new amnesty has been authorized, or that undocumented people could apply for green cards — or even U.S. citizenship — if they would just take a little initiative, and so on. The truth is inevitably more complicated.