Window of Opportunity
In San Antonio, as in cities around the country, every immigration lawyer has been booked solid for four months. Ever since President Bill Clinton authorized a temporary reinstatement of a provision known as 245(i) last December, lines have wound around the walls of the INS office. Nonprofit agencies like St. Mary’s Law Clinic and Refugee Aid have been swamped with calls and visits. For a while, people were camping out overnight in front of Catholic Charities in order to be seen by an immigration lawyer or counselor the next morning. “Every morning we had 100 people lined up,” Director Teresa Coles-Davila recalls. “Finally we had to stop seeing new people because we realized that we might not be able to process all the applications before the April 30th deadline.”
Section 245(i), a provision in immigration law from 1994 to 1998, went back into effect December 21. It allows illegal immigrants to seek legal status while remaining in the United States, provided they have a qualifying legal family member, can prove that they were here on that date, and are able to pay a $1,000 fine. The INS estimates that 200,000 to 300,000 illegal immigrants in Texas and 700,000 illegal immigrants in the United States, most of whom are from Mexico, could benefit from the provision.
Mario Mart?nez, for instance, went with his brother Jos? to see Catholic Charities immigration specialist Anita McDonald last month. According to McDonald, Mario, a Mexican citizen, has been here working in construction sin papeles, or without documentation, for 10 years. While he has never had any trouble finding work, he and his family are always in a kind of hiding. Because Jos? became a United States citizen two years ago, he can petition for Mario’s permanent residency.
Before 245(i) was reinstated, family members of legal immigrants who wanted to join their relatives were supposed to wait in their home country to obtain a visa that converts to permanent residency. If they had entered the United States illegally, they had to sneak back and try to prove they had never left, and risked being barred from this country for three to 10 years. When a visa became available, they would have to go to their consulate with the proper papers, and then wait nine to 10 more months for the visa to be processed before being admitted into this country legally. In the case of Mexican nationals, this meant biding their time in Ciudad Ju?rez while waiting for the visa to be processed. (These requirements will resume in May, when the reinstatement ends.)
Under 245(i), though, if Mario can show that the family was here on December 21, they can remain in this country during the 10 to 12 years it takes for a sibling to get permanent residency. (Even with the application pending they are still illegal and, if detected, can be deported).
Not all illegal immigrants are in Mario’s position. “I would estimate that two-thirds of the people we talked to either didn’t have a qualifying relative or had already filed some sort of application, and this wouldn’t help them,” says Lee Teran, director of the immigration clinic at St. Mary’s Law School. Others have been advised not to try to take advantage of 245(i) because of previous misrepresentations made to the INS. Parents of a married son, for example, might have lied in the past and said he was single to help him gain legal admittance to this country. Now legal, he could apply under 245(i) on behalf of his wife, but by submitting proof of his marriage, his own past lie might be detected, and he would be stripped of his residency.
But trying to apply for legal status the old way has its perils as well. Immediately after securing permanent residency for himself in 1993, Manuel Rodriguez petitioned on behalf of his wife and four children. They have been waiting in Mexico since 1993. Last month they finally received word that visas were available, but Rodriguez is missing one document, called an affidavit of support, which would prove that he has enough income, as shown on his IRS 1040, to support his family. The threshold for a family of six is $29,613. He made $9,000 last year. Had his wife joined him illegally and gotten a job, she probably could now have sought legal status under 245(i). As it is, he is searching for someone to submit a second affidavit of support, and the family again has its plans on hold.
American immigration laws are exceedingly tough on families, says Teran: “Whenever we talk to a family about their problems immigration is at the top of the list.” People are stuck in bad jobs, students can’t go on to college, spouses and children are left behind in another country, unable to create a household together. No one wants to move, because moving might set in motion detection. Undocumented immigrant family members become “a hidden part of the family that keeps the family from progressing,” Teran says.
Rather than wait up to 12 years to reunite with their families, as United States law requires, thousands of Mexican immigrants have done so illegally. The 245(i) reinstatement suggested, however briefly, that this is something other than a crime.
Belle Zars is a freelance writer who lives in San Antonio.