“I totally stand with immigrants. Just not the illegal ones. If they want to be here they have every opportunity to do it the right way.”

Jan 26, 2017 · 7 min read
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Yesterday, because I am an immigration lawyer, I put a brief summary of Trump’s executive actions on immigration on facebook so that my clients and friends could understand what is happening. I do this kind of thing a lot. My facebook profile is super public and not surprisingly I got a comment from someone that I didn’t know. That’s fair. It said: I totally stand with immigrants. Just not the illegal ones. If they want to be here they have every opportunity to do it the right way.

I don’t know this guy but I am willing to bet he is a decent person. Nothing about that comment is particularly bigoted or racist. And this is something that I hear all the time. People have no problem with the immigrants among them. It is their actions they have a problem with and the fact that they broke a law. They feel justifiable moral outrage that someone chose to do something illegally that they could have done legally and because of all that they get to mete out punishment. It makes sense and it is a pretty simple moral calculation.

Except that commenter is wrong. Not because he is a bigot, but because he doesn’t understand the basics of our immigration system. He assumes that people living in the country without permission have a simple choice to do it right or do it wrong. This is not the way it works at all. It is an understandable misunderstanding but a very dangerous one that Trump is preying on and a misunderstanding that we, as immigration advocates, have to absolutely correct if we have any chance of protecting our clients in these dangerous, dangerous times. Personally, I have to have faith that a deeper understanding may inspire a shift in opinion or some compassion in people who may feel hardened to the people I work with.

So here is a very basic explanation of how the system works. These are facts. The American Immigration Council explains it really well in this piece “Why don’t They Just Get in Line”. But this is the most simple way that I can explain it:

Very generally speaking there are two ways to get an immigrant visa to live in the United States as a legal permanent resident: the employment way and the family way. Full confession: I am not an employment immigration lawyer and am not an expert on all the nuances. I do know that it is an extraordinarily long and complicated process that rewards people with degrees, technical skills, and cash. It requires an employer to petition for a foreign worker and there isn’t a ton of options for “unskilled” workers. Employment immigration is a great way to bring talent into our country. For the vast majority of immigrants, though, it is not an option for them to choose and they have to immigrate through family.

Family immigration requires that a certain blood relative already be a citizen or a legal permanent resident. This person has to either be a child, parent, spouse, or sibling — no grandmas, aunties, cousins, second cousins, etc allowed. If you don’t have that family relationship to a citizen or resident you don’t get to immigrate through family. It is not an option. This means that for the majority of people in the world, there is no line to get into and there is no choice to just do it legally. But lets say, for the sake of learning, that you do have that relationship. The first thing you have to do is figure out what category you belong in. If your are the spouse, child (under 21), or parent of a US Citizen you are considered an immediate relative and the process will go fairly quickly (about a year, maybe, without any problems). If you have a different relationship you have to figure out what preference category you fall into:


First: (F1) Unmarried Sons and Daughters of U.S. Citizens

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents

A. (F2A) Spouses and Children of Permanent Residents

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents

Third: (F3) Married Sons and Daughters of U.S. Citizens

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens

So, lets imagine you are a foreigner with a sibling who is a US citizen. You are category F4. The next step is to figure out how long the a wait is based on where you are from. On the chart below Mexico, China, India, and the Philippines all have their own lanes — every other country in the world is grouped under “All other chargeability areas”. Here is the chart looks like in January 2017:

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So lets say you are category F4 from Mexico, the date on the chart says 15 May 1997. This means that they are processing application from this date. Currently there is a 20 year wait in that visa category. A sibling from Mexico, legally entitled to immigrate into the US has to wait 20 years. Check out some of the other categories — the one line that is moving fast is F2A (Spouses and children of Legal Permanent Residents)is still a 2 year wait. The next fastest waits start at 7 years and the longest wait right now is 24 years.

Let me give a couple examples from my practice about how this plays out:

Recently I spoke with a family from Venezuela who are now US Citizens. They still have a sibling there and he hasn’t had much interest in moving to the US but now there is no food in Venezuela, to put it simply. A quick analysis (which you can now do) told us that there is a 13 year wait right now for a sibling from there. A starving person legally entitled to a visa because of his relationship to a US Citizen is told with a straight face to wait 13 years.

Here is another example. Two US Citizen parents want to put in a petition for their daughter from El Salvador who they left with grandparents 23 years ago. El Salvador is the most violent country in the world and a particularly horrendous place for young women. Their daughter is category F1 being the adult daughter of a citizen and right now that category is a seven year wait. Contemplate seven years if your daughter was living in a country where women are raped and left in dumpsters.

As those two admittedly extreme but not uncommon examples point out, even if we argue that those who believe in the rule of law will wait 20 years to get their visa, that reasoning totally ignores the forces that push people to migrate in 2017. We have 65 million displaced people in the world right now. These are rational people. Wars and regimes and economic and environmental disasters have made staying in certain places intolerable and even impossible. Perhaps they can wait six months or a year or two — but decades for the chance to move legally? An american trying to deny this would be silly — most of us know nothing of the conditions that cause a person to abandon home and country and family and history and all that they know and love.

Breaking the law is always a choice and it is a moral choice. But before deciding that someone is morally weak it stands to understand the choices that they had before them when they made the decision. The hard part is that everyone’s story will be different so it requires listening and empathizing. It is time consuming and uncomfortable. Understanding the complexity of the choice an immigrant made is really important because the punishment that Trump is choosing is very harsh: jail, terror, separation of children and parents, in some cases deportation to violent countries where you might be killed. These are terrible things and in some cases unthinkable things and it is worth being sure that the person you do that to did something terrible before you say they deserve those punishments.

So there is the problem with I totally stand with immigrants. Just not the illegal ones. If they want to be here they have every opportunity to do it the right way. The right way is complicated and the wrong way sometimes is the only feasible way to feed your family or keep yourself alive or to have a chance at the kind of life so many of us take for granted every second we are alive in this country. I would love it if everyone saw it the way that I saw it but I will start with trying to help people understand the way the broken system functions and considering that the experience and choices of millions cannot be summarized in a tweet or a facebook comment.

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