Why Gerardo Can't Just "Get In Line"

We recently featured the story of Gerardo Hernandez-Contreras, a father who was deported after a traffic violation, on our blog. People sympathetic to Mr. Hernandez-Contreras blamed Congress for failing to pass immigration reform, while others pointed the finger at the Obama administration and overzealous local police.

But other readers commented that Mr. Hernandez-Contreras is to blame for his own predicament because he never took steps to apply for legal status. In the words of one commenter:

What went wrong? He never went for his green card, or started going for citizenship...

Another put it this way:

Clearly he had no loyalty to the US since, being married to a US citizen, he could have taken steps to adjust his status.

These comments represent a very common misconception: that undocumented individuals with U.S. citizen family or significant ties to the United States  can easily apply for legal status. Unfortunately, even though that's a logical assumption, our current immigration system is anything but logical. The reality is that for millions of undocumented individuals with U.S. citizen spouses or other family, there is no easy way to "get in line" to get a green card.

First and foremost, as a result of changes to immigration law dating back to 1996, millions of undocumented individuals are subject to 3- or 10-year bars, during which they are ineligible to apply for a green card. Any immigrant who has been in the United States without legal status for more than 6 months but less than one year is ineligible to apply for a green card or reenter the country for 3 years; any immigrant who has been undocumented for more than a year is barred for 10 years. That's a very long time to be separated from your family.

In Mr. Hernandez-Contreras' case, if he left the country to apply for a green card at an embassy abroad – as he would have been required to do – he would have been subject to a 10-year bar to returning to the United States and his U.S. citizen wife and children. His 6-year-old daughter's sweet sixteen would have come and gone before he could even have submitted a green card application.

If you think that these bars do not make sense, you're not alone. Diverse organizations, such as the Heritage Foundation, Center for Immigration Studies, and CATO, as well as Republican Reps. Raúl Labrador, Steve Pearce, and Bob Goodlatte are on the record critiquing the bars or supporting elimination in some fashion.

Second, the backlogs for processing family-based visa applications can take decades. Spouses of permanent residents (green-card holders) can wait 7 to 10 years to come to the United States legally. Other family members can wait between 4 and 22 years.   For Mr. Hernandez-Contreras, this would mean missing milestones in his family's life, such as high school and even college graduations.

So while it might seem logical to ask why Mr. Hernandez-Contreras did not apply for legal status, a better question is why we made it virtually impossible for him to do so.

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Vicki B.

I think there's absolutely NOTHing "logical" about most of the commenting people when it comes to immigration. They're too busy being filled with their hatred that they CHOOSE to keep.
A friend of our family always says "The hatred needs to stop" and I think that among other things he's saying they're choosing to stay hateful.

from Richard, V...

Most of the people who comment on this topic need to "get in line." They're due to receive a ticket to the "Get a Clue" train.
They did the same thing when immigrants came from Vietnam in the mid-70's. Practiced the same hatred of differing races, nations, etc.
Some people even said that we were "fraternizing with the enemy" by taking them in.
The enemy? After the war ended? Even if we lost, the people don't remain the enemy when we're no longer in armed conflict with them.
The hatred needs to stop. If someone doesn't start somewhere nobody will start anywhere at all. Somebody needs to take the lead and stop the hatred. It's the only way change occurs.

Anonymous

The simple fact of the matter is he choose to enter this country illegally. He choose to marry an American citizen . He choose to violate our laws. The fact that he was living illegally in this country for a number of years is not a mitigating factor.
The absence of a line for a green card does not mean he can come to this country. It means he can not come to this country.

Anonymous

This is false. If he wanted to comply with the law, he could have applied and been legal within 1 year. He chose not to obey the law and apply for an adjustment of status.

When married to a US Citizen, he could have applied for an adjustment of status without leaving the country using the form i-485. In San Diego, the processing time for an I-485 is less than one year.

Anonymous

The requirements and the procedure described here are not necessarily accurate. My ex-wife was an illegal overstay when we met in 2005, I believe she had extended at that time by nearly two years. (She had entered the country legally but didn't leave when her I-94 expired.)

After living together for a year and a half, we got married and immediately sought a lawyer to help her get her green card. There was no waiting period and no forced departure from the US. She got her temporary residence status and after two years, permanent status. Two more years and she applied for citizenship and got it.

Was it easy? No. Was it expensive? Yes. First I had to apply to qualify as her sponsor, able to take responsibility for her financially, something I suppose many spouses would be unable to do. Then there were the government fees, which had just increased at about that time. And the attorney's fees of about $3000. But from our first meeting until she gained citizenship was 6 1/2 years.

Anonymous

To the previous Anonymous commenter: You cannot compare the two situations. Your wife came in and overstayed her visa. The consequences for her are different, and much less stringent, than for someone who came in without a visa. A popular misconception is that immigration is a "one size fits all" category of law when, in reality, sometimes the slightest nuance (such as the exact day you entered the country) can make all the difference as to whether you can get a green card or other immigration relief.

Anonymous

You can't just adjust status within the US if you came without a visa. You MUST leave the US therefore triggering the bar! Please don't speak if you have NO knowledge! Or re read the story, you must've obviously not read it correctly!!

Anonymous

The only person to blame is Gerardo. Does nobody believe in personal responsibility these days?

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