A Real Life Tragedy
September 26, 2003

Believe it or not, some of my most satisfying moments as an immigration attorney are when a client walks out of my office after I inform them that viable options to pursue their U.S. immigration goals do not now exist. A typical inquiry of this nature involves an undocumented alien who has either overstayed (or will overstay) their visa or has entered the U.S. with no visa at all, and their desperate wish is to remain in the U.S., obtain work authorization, a drivers license, and eventually a green card. Oh yeah, the client often adds, while you are at it Mr. Attorney, can you also find a way to allow me to leave the country to visit my native homeland and reenter without problems?

Unfortunately for many of our undocumented population, options to improve their immigration status and pursue any of these benefits tend to be scarce these days, with the expiration of Section 245(i), and new legislative proposals working their way through Congress at a snail’s pace. But, I know, after I listen to such a client’s predicament and explain the workings of our current immigration laws, the client will be equipped with real information and facts to hopefully protect themselves from predators in the community seeking to take advantage of their desperation. And unfortunately, the predators, in the form of neighborhood consultants or non-attorneys offering paralegal services, continue in their ways.

One such desperate individual, “Maria”, recently appeared in my office for a consultation after being referred by a former client. Maria entered the U.S. as a tourist approximately 2 years ago and decided that she would like to remain in the U.S. She had lined up employment in a home health care attendant position for an elderly individual and within the past year, visited a Main Street “paralegal service” in Skokie, Illinois with the hope that goodies like a work permit, drivers license and green card may be within reach. In reality, they were not. Had this individual asked for my opinion before the fact, I would have advised them as follows:

I am sorry Maria. Its unfortunate but unless you are in love with and intent on marrying a U.S. citizen, I can be of no real assistance at this time. Yes, the proposed employment is the type of position where we would be able to prove the unavailability of U.S. workers – an essential component of a labor certification and most employment based immigration avenues. However, because you will eventually become out of status while the 1 to 2 year labor certification process is pending (since you do not have the funds to change your status to that of a student, or the type of job offer that can facilitate the approval of a professional H-1B visa), your eligibility to adjust your status to permanent residence in the U.S. ends. That is because the maintenance of lawful immigration status is a prerequisite in all cases where an individual seeks to pursue permanent residence via a job offer and while remaining in the U.S.

Exception: If that individual is “grandfathered in” under Section 245(i) of the Immigration and Nationality Act, they may be able to fall out of status and still pursue this employment based immigration option.

And Maria, you would have been “grandfathered in” under Section 245(i), had this labor certification, (or even a previous family based I-130 filing by, for instance, a U.S. citizen sister) been filed prior to April 30, 2001. But Maria, this is not the case, and starting a labor certification at this time will not yield any immigration benefits for you in 1, 2, 3, 4 or 20 years. We need a change in the law, and if it doesn’t come, you will be out of the money you waste on immigration and attorneys fees.

That is usually the end of it. The client listens, appreciates my candidness and goes on their way. I warn the client to be careful of individuals offering services that sound too good to be true and if they are indeed offered any such service, I advise them to get a proposal in writing. And I offer a continued consultation, at no additional fee, to assess the legitimacy of the offer. Ten times out of ten, the swindler will refuse to put an offer in writing and my continued consultation becomes unnecessary, and the client will save the $1,000, $2,000 or $5,000 they would have otherwise wasted.

But Maria did not see me until after the damage was done. She was out close to $2,000.00, in fees she unnecessarily paid for “paralegal services” and immigration fees. Maria instead visited the Main Street paralegal service in Skokie, and was advised that she could indeed obtain employment authorization and adjust her status in the U.S. by way of her job offer. Fees were paid, the official paperwork was prepared, and the process looked legit. The labor certification application was filed with the Illinois Department of Employment Security a receipt was issued, and immediately thereafter, all of the required paperwork in support of her application for permanent residence and employment authorization, was apparently then filed with CIS’ (formerly INS) Nebraska Service Center, the office where all employment based immigration filings are to be submitted. Receipts were issued by CIS Nebraska and the process still looked legit. In fact, Maria was so encouraged by the seemingly wonderful prospects that several of her friends were starting to gather the funds to avail themselves of this tremendous service.

What Maria did not know was that in order for any of the immigration benefits she was seeking could be issued, her labor certification filing needed to be approved by the U.S. Department of Labor – a process that, as stated, could take anywhere from 1 to 2 years. And that without such an approval BEFORE the paperwork was filed with Nebraska, the process NEVER STOOD A CHANCE OF SUCCEEDING, nor will it ever under current immigration laws.

What Maria also did not know, as a completely separate and independent reason for ineligibility, was that her status as a visa overstay barred her from adjusting to permanent resident status in the U.S. by way of this employer’s petition since, again, she had not been “grandfathered in” under section 245(i).

Maria shed many tears the day she appeared in my office after presenting for my review the CIS decisions denying all of the applications filed. It was not the money that bothered her so much, but her shattered dreams and hopes. The truth hurt. And like so many others who are victimized in this way, Maria was scared and hesitant to report this act of theft and unauthorized practice of law to the police, let alone ask for her money back. Make no mistake, if the authorities got a hold of this case with a complaining witness ready to testify, a felony theft conviction under our state’s criminal laws would follow.

But like the tree that silently crashes down in the forest because no one is around to hear it fall, another act of theft may very well get played out in the immigrant community with impunity. A competent and ethical licensed attorney who specializes in immigration law would not have taken Maria’s money and would not have proceeded in the way the paralegal services outfit did.

Which brings me to my next point. I, along with the Philippine Weekly and immigration attorney Mary Carmen Madrid-Crost are in the process of organizing a free informational seminar/town hall meeting to be conducted in the Chicago area on October 26, 2003. If you or someone you know would benefit from an honest, open and candid discussion of the state of our country’s immigration laws and the options that are available for both the documented and undocumented population, this will be a program you will not want to miss. More details regarding time and place will be available in the coming weeks. So mark your calendars!!