Path to legal status is complicated

and Richard Thierolf

On Aug. 21, the Mail Tribune's "Since You Asked" column discussed obtaining citizenship for undocumented immigrants from Mexico. The article contains inaccuracies.

We wish to clarify key points about the complicated path for an "illegal" or undocumented immigrant to reach citizenship. In many cases, persons need legal counsel. Mistakes about immigration law have caused distress and even tragedy for local families. The Mail Tribune has reported about such problems in the past.

The Aug. 21 article fails to clarify two very different legal definitions: citizen and lawful permanent resident. LPRs and citizens are not the same but, confusingly, many politicians speak as if these terms mean the same thing.

LPRs may work, but cannot vote; the government can deport them for violating any of a number of laws. Citizens cannot be deported.

Usually, immigrants must first become LPRs to apply for citizenship. An exception is that persons serving honorably in the U.S. armed forces during "time of war" as designated by the President may become citizens without first being LPRs, but the military does not necessarily welcome undocumented immigrants, so this path to citizenship can be risky.

To be eligible for citizenship, an LPR in most cases must be at least 18 years old, with five years of continuous residence and physical presence in the U.S. after becoming an LPR. (or, if married to a U.S. citizen, three years of residence and presence). All citizenship applicants must have good moral character. Most must know English, and pass a U.S. history and civics test.

The article states that a person must go back to his/her home country to apply for citizenship. This is not the law. Some undocumented immigrants must return home to apply for LPR status (as opposed to citizenship). Whether one must leave or remain in the U.S. to become an LPR depends on the facts of each case, and the applicable legal rules. Not understanding these rules causes big trouble.

Some who leave the U.S. to seek LPR status (even those with U.S. citizen spouses or children) might not be permitted back into the U.S. for three years, 10 years, or forever. Others have little trouble obtaining LPR status outside the U.S. Some who apply for LPR status in the U.S are arrested and removed. (Congress has changed the term "deported" to "removed".)

Still others, who fit within the complicated rules for LPR status, never have to leave the U.S. to become LPRs. Relevant factors include when the undocumented immigrant first entered the U.S., whether or not he/she ever left the U.S. after that first entry, and whether he/she was ever removed (or deported); family relationships and criminal history are crucial factors. These are just some of the most important factors.

The article is correct that some investors may qualify for LPR status. For example, an investor capitalizing a business enterprise with $1 million, thereby creating jobs, may apply. For most undocumented immigrants, this path to LPR status is impossible; even if they had the money, many who applied would be placed in removal proceedings, based on laws that penalize persons who have entered into and remained in the U.S. without authorization.

The article states that "Individuals can attain permanent resident status after living here continuously for five years, or by living here while being married to a U.S. citizen for three years ..." This is not the law. In exceptional cases, an undocumented immigrant with at least 10 years of unlawful residence might nevertheless qualify for LPR status, through so-called "cancellation of removal," but this is not the general rule. Also, Mexicans generally do not qualify for political asylum or permission to reside in the U.S. on humanitarian grounds; an undocumented Mexican seeking LPR status on such grounds might be removed instead. Many persons are placed in removal proceedings after applying for benefits to which they are not entitled, thereby drawing the government's attention to themselves.

Immigration law, like tax law, results from political tradeoffs that are not always logical. Laws can change quickly and drastically. Low-income persons may see an immigration attorney at the Center for Non-Profit Legal Services (541-779-7292) or Catholic Charities of Southern Oregon (541-779-0803). John Almaguer may be contacted at the Idiart Law Group, LLC (541- 772-6969). Richard Thierolf may be contacted at Jacobson, Thierolf & Dickey, P.C. (541-773-2727). The website for the U.S. Department of Homeland Security, Citizenship and Immigration Services and the American Immigration Lawyers Association, ("FAQs"), and, respectively, are good resources.

John Almaguer is a Medford attorney whose practice is limited to immigration law. Richard Thierolf is a Medford attorney who also practices immigration law, but not exclusively. Both are members of the American Immigration Lawyers Association, a national organization to advance the quality of immigration and nationality law and practice.

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