U.S. immigration law is incredibly complicated and nuanced. It requires years of careful study to master, and still, the ins and outs of it can be baffling even to an attorney not specialized in immigration.
Basics of Immigration Law That Every Social Worker Should Know
Social workers cannot be expected to thoroughly comprehend immigration law, nor give legal advice – instead, they should make referrals to experienced and reliable attorneys. However, there are some basics of immigration law that social workers should learn in order to ensure they are able to properly analyze policies that impact immigrant clients, advocate to protect client’s rights and wellbeing, and ensure that they are providing accurate information to clients and colleagues.
The following are ten essential facts about immigration law in the United States.
- Immigration law is federal law
The United States Congress is responsible for overseeing immigration policies in the country. The majority of the country’s current immigration law is found in Title 8 of the U.S. Code. Thus, immigration law is federal law, overseen by the U.S. government at the national level. While states can pass laws that enable or prevent police cooperation with federal immigration agents, immigration oversight still falls to the federal government.
- Immigrants and refugees are defined differently in U.S. law
While these terms are often used interchangeably, there is a legal difference between an immigrant and a refugee. Refugees are those who are forced to flee their countries in order to escape danger, and crucially, are able to prove this when they arrive in the U.S. An immigrant is someone moving from one country to another, usually in search of better opportunities. While there is often overlap between these two classifications, U.S. immigration law defines refugees according to the 1951 United Nations Convention, and refugees are granted certain rights and privileges not available to immigrants.
- There are many different classes of immigrants
Immigrants in the United States are a diverse group, and arrive in the U.S. through a variety of different means. U.S. immigration law assigns immigrants to different classes, based on how and why they came to reside in the U.S. These include U.S. citizens, lawful permanent residents (LPRs or Green Card holders), conditional residents (awaiting receipt of a green card), undocumented immigrants, and temporary immigrants (considered non-immigrants) who come to the country as students, business visitors or tourists, under temporary protected status, or through employer-sponsored visas.
- The Department of Homeland Security oversees immigration the the United States
Immigration law is monitored, implemented, and enforced through the Department of Homeland Security (DHS), which includes Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection. ICE is responsible for immigration law enforcement, mostly in the country’s interior, and is the entity responsible for immigration raids, deportations, and immigration detention in its mission to “protect America” from immigration law violations. USCIS is the services branch of DHS, and handles applications for changes in immigration status, amongst other direct services. Customs and Border Protection operate at the borders between the U.S. and Mexico and the U.S. and Canada, monitoring entry of people and goods.
- Any child born in the United States is a U.S. Citizen, regardless of parents’ status
U.S. law recognizes birthright citizenship, known as jus soli, or “right of the soil.” This means that any person born in United States territory has the right to U.S. nationality. In other words, every person born on U.S. soil is automatically a U.S. citizen.
- Having a U.S. citizen child or spouse is not a guaranteed path to citizenship
While all persons born on U.S. soil have full rights as citizens, the parents of that child are not guaranteed citizenship. Similarly, marrying a U.S. citizen does not guarantee citizenship for the spouse. In both cases, a lengthy petition process is required. A U.S. citizen must be 21 years of age to petition for their parents to become citizens, and her/his parents must live outside of the United States. Spouses of U.S. citizens are not eligible for citizenship right away either; they must first apply for conditional residency, which can, but does not always, lead to citizenship.
- Family visas have a huge backlog
The U.S. has a family-based immigration system, which means that another potential option for family members of U.S. citizens to lawfully immigrate to the United States is through petitioning for family visas. This means that U.S. citizens can sponsor their family members for a visa that provides permanent residence that could lead to citizenship. However, there are a limited number of family visas available per year (a number that has remained the same since 1990), in addition to per-country limits on family visas. Thus, the wait for a family visa can be many years, sometimes decades.
- The DREAM act has not been passed, but the DACA program provides temporary relief
The DREAM (Development, Relief, and Education for Alien Minors) Act was a bill in Congress that “would have granted legal status to certain undocumented immigrants who were brought to the United States as children and went to school here.” Immigrants who fall into that category are now often referred to as Dreamers, and are generally considered to be innocent of any violation of immigration law since they were too young to make the decision to cross the border for themselves. The DREAM Act did not pass, thus there is still no path to citizenship for Dreamers in the U.S. However, President Obama signed an executive order that provides temporary protection from deportation and work permits to qualified Dreamers through a program called Deferred Action for Childhood Arrivals (DACA). The future of DACA under the Trump administration remains unknown.
- Many undocumented people in the U.S. entered legally
Contrary to what many people in the United States believe, not all members of the large undocumented population (approximately 11 million people) in the country crossed the border illegally. It is estimated that half of the undocumented population came to the U.S. through various visa categories, but remained in the U.S. beyond the duration of their visas. If a visa-holder is still in the United States when a visa expires, the person is considered to have lost lawful status immediately, thereby becoming an undocumented immigrant.
- Immigrants in removal proceedings are not appointed an attorney
Crossing the U.S. border or being found on U.S. soil without proper documentation is considered a crime, according to U.S. immigration law, and as a result, undocumented immigrants who are detained must undergo removal proceedings in court that often lead to deportation. Unlike any other crime, however, undocumented persons in deportation proceedings are not appointed a public attorney to defend their case. Most immigrants in deportation proceedings lack any legal representation, as private attorneys are only available to those who can afford them. Research has shown that having legal counsel positively impacts the outcome of immigration cases.
There is much more to learn about immigration law in the United States, and how it impacts immigrant clients. These basics provide a foundation for further learning. Connect with a public service law firm, immigrant advocacy organization, or reputable attorney in your area to learn more!