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While immigration causes controversy, two lawyers say most Americans don't know how it really works

This article first appeared in the St. Louis Beacon, July 20, 2010 -In the long, quiet boardroom at U.S. Legal Solutions LLC, a map hangs on one wall. There, the world spreads out in colors and shapes that define borders and countries.

But here, in the offices of lawyers Gustavo Arango and Ken Schmitt, things aren't quite so simple. Or clear.

"You hear this line over and over and over again," Schmitt says, especially with politicians, he says, who use the standard talking points like " 'We need reform for people who are here illegally, they have to pay a fine and get in line.'"

But here's the problem: "There is no line for these people," Schmitt says.

Illegal vs. undocumented

So what's the difference? While the terms refer to the same issue, people who are here with no legal status, St. Louis-based lawyer Ken Schmitt uses the term undocumented.

Primarily, that's because illegal alien isn't a legal term, he says.

"You're either a citizen or an alien."

If a person is an alien, they can be a legal permanent resident, be here on a non-immigrant visa, or have no status, meaning they crossed the border illegally or they crossed the border legally but fell out of status.

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There are ways for people to come here legally, through both non-immigrant and immigrant visas, he says. On the immigrant side, meaning people who want to stay and eventually become citizens, each year about 220,000 family-based visas are available and 140,000 employee-based visas are available.

It isn't really the length of time it may take to get through those processes that's the biggest problem, Schmitt says, but that the demand is much greater than the supply.

He estimates more than 1 million people come here illegally each year.

The St. Louis Beacon approached the two lawyers to talk about the finer points of how immigration actually works: what does it take to get here, does it matter where you're from, how much does it cost, etc.

And the simple answer is -- there is no simple answer, they say, both in navigating how our immigration system works and helping people understand that maybe it doesn't really work at all.

"The anti-immigration reform people have boiled the message down to 'they broke the law, this is a nation of laws, enforce the law,'" Schmitt says. "And the people who are hearing the message are U.S. citizens or have their status, they're not impacted by the law. It's easy to remain ignorant and swallow the easy message."

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The line-less line

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So how does immigration work?

That depends on who you are, where you're from, if you're married, have a family, a job or a job offer.

But essentially, there are two kinds of visas -- immigrant and non-immigrant.

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"Non-immigrant, there are many of them, almost from A to Z, and they're just to come to the U.S. for that very specific purpose," Arango says.

Think student visas, visas for tourism or training. They are for a certain purpose, for a limited period of time and may or may not include authorization to work. None of them, except for the K-1, offers a way to stay here and adjust that status to get a green card, though.

Student visas used to operate on an honor system, Schmitt says, and students often overstayed. All of the hijackers in the Sept. 11, 2001, terrorist attacks fell into that category. Since then, he says, there's a nationwide database.

"They've cracked down on that quite a bit."

But depending on where you're from, even getting tourist visas can be challenging, Arango says, and people must prove they have ties to their home country like owning a house, a business or property. Even with all that proof, a non-immigrant visa isn't guaranteed.

Also, not all foreigners need non-immigrant visas; Western European tourists, for example, generally don't require visas.

Immigrant visas are another story, but also quite varied.

"The way I think of it is there's family-based, there's employer-based and there's a host of exceptions," Schmitt says.

The hard thing is qualifying for them, he adds. And if you're here undocumented, regardless of how you came, most of these pathways aren't an option.

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Family, employer and the exceptions

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Employment-based: According to the State Department, 140,000 employment-based visas are made available every fiscal year. These visas are obtained in nearly every case by the employers, not by the people hoping to immigrate. First, those employers have to file a petition and wait for approval. The Department of Labor also requires businesses to survey the labor market and advertise the position, looking for someone in the U.S. who meets minimum qualifications.

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Preference is given in the following order:

1. People with extraordinary ability: These abilities must fall into the fields of arts, sciences, business, education or athletics, and the people holding them must have national and international acclaim in their fields, according to the State Department. This is the only category where no job offer is needed. Outstanding professors, researchers, multinational managers and executives also fall into this category.

2. Second preference is given to people with advanced degrees and "exceptional abilities," the State Department says.

3. Third preference is given to skilled workers, professionals and unskilled workers.

4. A fourth preference is given to people who meet specific standards. For instance, religious ministers, employees or former employees of the U.S. government abroad and Iraqi or Afghan interpreters and translators who've worked directly with Americans.

5. Finally, the fifth category is for investors, people willing to invest between $500,000 and $100 million here in a business that would create at least 10 jobs here.

Employee-based visas can take between 1 year and 1 1/2 years.

Family-based: An unlimited number are available for immediate relative immigrant visas. These are for U.S. citizens, and their immediate relatives are listed as spouses, unmarried children under 21, an orphan adopted abroad, an orphan adopted here, and the parent of a citizen who is at least 21.

A limited number of visas is available for family preference immigrant visas. These go to both U.S. citizens and lawful permanent residents, and in the case of U.S. citizens, can include more distant relations such as the spouses and children of married children.

The process here, like all visa processes, requires paperwork, fees and in the case of family-based visas, affidavits of support. That affidavit, according to the U.S. Citizenship and Immigration Services, is the sponsor's way of showing they have the financial means to support the immigrant and that that person or people won't become wards of the state.

According to the State Department, there is no set length of time it takes to complete this type of visa. That depends on where you're applying from, where the person is you're applying for, and a number of other factors.

The exceptions:

Refugee and asylum: Most people do not come into the U.S. this way, but those seeking refugee and asylum status can be granted either one, with the possibility of eventually becoming legal permanent residents.

Diversity Visas: This is a true lottery for people who meet some strict qualifications. Every year, 50,000 visas are made available in a lottery program to people from countries with low immigration rates to the U.S., according to the State Department. Applicants must have a high school education and have worked for several years.

NACARA: The Nicaraguan Adjustment and Central American Relief Act is for people from Honduras, Nicaragua, El Salvador, Cuba, Guatemala and some former Soviet Bloc countries.

"NACARA is really a process that affects someone's ability to get a green card from removal proceedings," Schmitt says. In other words, if a person from one of those countries is in the process of being deported, NACARA could apply and help them stay. They can also apply before those proceedings.

T-Visas are available for victims of human trafficking who are willing to help law enforcement with their cases. This is a non-immigrant visa with the possibility to adjust.

U-Visas are for victims of certain crimes such as domestic violence, This is a non-immigrant visa with the possibility to adjust.

S-Visas are for people helping the government to prosecute someone and are key in the case. The government signs off on these.

Schmitt says he has heard reports out of Tempe, Ariz., now that local authorities are refusing to sign off on these, "even where the undocumented individual is essential."

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Not so fast

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Until immigrants become U.S. citizens, they can't vote or take federal government jobs. Legal permanent residents can't leave the U.S. to open a business in another country and may jeopardize their status if they're out of the country for more than a year.

Also, getting a visa can be tougher depending on where you're from.

"If you're coming from some of the Middle East countries, it doesn't matter how married you are to a U.S. citizen," Arango says. "It takes time."

Those people's names have to go through several databases, and Schmitt says, the Department of State has a classified list -- the Condor List -- of countries considered high-risk.

Those applications can take years, Schmitt says.

For all applicants, the process isn't cheap, either.

Like the different types of visas, not all cases are the same, Arango says, and many factors can make the price go up.

But with filing fees, medical exam fees, lawyer fees and any other of the steps involved, getting a green card, adjusting a person's status or keeping them from being deported can cost between $1,500 and $10,000 or more.

And for most people, that amount is out of reach, Arango says.

"DHS has just filed proposed regulations to increase fees again by another 10 percent," Schmitt says.

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