This blog was originally posted on our Director of Family Immigration Services Facebook page. Since that time, it has gone viral, with more than 135,000 shares as of this posting. It is a great educational piece for people to better understand the basics of immigration.
By Eric Pavri
I’m an immigration lawyer. I know that many of my Facebook friends, who are good and intelligent people, honestly have questions like the following: Why don’t all these immigrants just become legal, and do they get all kinds of public benefits?
I hope you’ll read what I wrote here in the spirit in which it was intended, which is to cut through the BS (from poorly-informed but loud voices on both the left and right) and simply provide correct information so that people can decide for themselves what is right and best.
I recently wrote the comment below to a story by Cinthia Maldonado, a reporter with KRDO TV, about a teacher here in Colorado Springs who has DACA.
To several of the commenters on this thread – first, I want to acknowledge that asking why people don’t just become citizens, or whether people without legal status can get public benefits that U.S citizens cannot, are legitimate questions. If they are asked in good faith, no one should mind you asking them.
Therefore, let me answer your questions. Please know that I am well-informed on these topics, as an immigration lawyer for the past 8 years, the past six of those in Colorado, and currently the Director of Family Immigration Services at Catholic Charities of Central Colorado (most of you know us best as the organization that runs the Marian House Soup Kitchen). You may verify those statements by entering my bar number (44591) on the Supreme Court of Colorado website (http://www.coloradosupremecourt.com/Search/AttSearch.asp) or viewing our Catholic Charities website (https://www.CCharitiesCC.org/).
First, as to why young people who have DACA haven’t just become citizens:
To become a U.S. citizen (other than by birth), one must first become a Lawful Permanent Resident (“green card” holder). Only after five years as a Permanent Resident can you apply to become a citizen. Thus, the obvious next question: how does a person become a Permanent Resident? There are three primary options to do so:
1) Family-based petitions. This means that a U.S. citizen or Permanent Resident parent, spouse, adult child, or sibling files a “petition” for you. Depending on the category that you fall into, the wait will be anywhere from 1 – 22 years (yep) before you can use that petition to take the next step – applying to become a Permanent Resident (background checks, medical exam, more fees, etc.). That works for people living outside the U.S., but for those who have been here, it may not be possible if they entered the U.S. illegally, even if they were minor children when they did so.
2) Employment-based petitions. A U.S. employer can similarly sponsor you, but generally only if you are in a profession requiring an advanced degree or unique skills (doctors, software engineers, world-class athletes to coach professional sports teams, etc.). Even then, the potential employer must generally also prove that they made good-faith efforts to hire a U.S. citizen for the position, but no qualified applicants applied.
3) Diversity visa lottery. Every year, the U.S. government selects 50,000 people worldwide who enter a lottery and pass background checks to come to the U.S. as Permanent Residents. This lottery, however, is only available to people from countries that traditionally send few people to the US – so, for example, people from countries such as Mexico, the Philippines, China, Guatemala, India, El Salvador, and other countries that send larger numbers of immigrants to the U.S. do not have this option.
Extra note: The current Administration has actively sought to eliminate or dramatically limit Options #1 and #3. The new term being used in the attempted re-branding of Option #1, family-based immigration, which has been the basic principle of U.S. immigration law for over a century, is “chain migration.” If those two options are in fact eliminated or curtailed, legal immigration to the U.S. will be significantly reduced.
The KEY POINT to all of the above: If you do not qualify for one of these 3 options, then there is no “line” to get into to legally become a Permanent Resident and eventually a U.S. citizen. So, if you are not fortunate enough to have, say, a U.S. citizen spouse or a graduate degree in computer science, you very likely can never become a citizen of the United States.
Second, one commenter asked why President Obama, when he established DACA in 2012, did not just create a path to citizenship for these young people at that time. The answer: earlier that year, Congress had for the 11th year in a row, failed to pass the Dream Act, which would have done exactly that. The President acting through his authority as head of the Executive Branch cannot create a path to Lawful Permanent Residency (and eventual U.S. citizenship). Only a law, passed by Congress and then signed by the President, can accomplish that. So President Obama on June 15, 2012 created the more limited DACA program through Executive Action – which is why President Trump, as the new President, was able to end the program, also without an act of Congress, last fall.
Finally, as to the question of immigrants receiving public benefits, only a U.S. citizen or a Lawful Permanent Resident (green card holder) can receive almost all types of public benefit – including Medicaid, Medicare, SSI disability, Social Security payments for seniors, TANF, and food stamps. The irony: most undocumented immigrants work under made-up Social Security numbers and so receive a paycheck from which Social Security, federal income taxes, and state income taxes are withheld, and of course they pay the same local sales and property taxes as anyone else through retail purchases, pass-through costs of apartment leases, etc. Same of course goes for the 800,000 current DACA recipients, who are authorized to legally work in the U.S. But none of those employees, despite paying INTO the system, will ever receive those public benefits listed above, that are paid for by the money withheld from their paychecks. So they are propping up our federal and state government entitlement programs because they pay in, but won’t ever take out.
The following are the public benefits that undocumented immigrants can receive in United States:
1) Public education for children in grades K-12. This was definitively established by a 1982 Supreme Court case, Plyler v. Doe. The Supreme Court in its reasoning explicitly stated that it would not serve the overall public good of the U.S. to leave many thousands of children uneducated.
2) Emergency room services, but only to the point where the patient is considered “medically stable,” at which point he/she is released. These services are not free, however, as in my job I meet hundreds of immigrant families who sacrifice over years to slowly pay off high emergency room medical bills.
3) WIC assistance. This is for milk, food, etc, and available only to pregnant mothers. The rationale is that the children in the womb will be U.S. citizens when born, and therefore it is in the long-term economic best interests of the nation to ensure that they receive adequate prenatal nutrition to improve their chances of being productive citizens in the decades to come.
4) Assistance from police if they are the victim of a crime and call for help. To their credit, the vast majority of our Colorado Springs law enforcement officers take their duty to protect all people seriously. Chief Carey of the CSPD and Sheriff Elder of the EPCSO have made clear that their officers can’t do their most important job – keeping us safe by getting dangerous criminals off our streets – if a whole class of people (undocumented immigrants) is afraid to call 911 to report crimes that they witness or are victim to.
5) Assistance from a fire department. Rationale, besides the obvious moral one: If your house was next to that of an undocumented immigrant family, would you want the firefighters to let that house continue to burn, putting yours at risk of catching on fire too?
And that’s it. Those, to the best of my knowledge, are the only public benefits that an undocumented immigrant can receive in just about any part of the United States. As someone who directs a small office that works with hundreds of low-income immigrant families per year, know that when I see the precarious economic situation of many of these families, I’d help them access other benefits if they could. But they simply can’t. Now, children of undocumented parents, born in the U.S., are U.S. citizens under the 14th Amendment (the one that declares that all human beings born on U.S. soil are citizens – this was passed immediately after the Civil War to forever end the legal argument that African Americans were not U.S. citizens). As such, those children can qualify for the same public benefits as any other U.S. citizen, if they qualify through economic need or disability. But their parents or undocumented siblings cannot.
I hope that this information has been useful to my friends willing to read through this long explanation. Please know that even this long summary leaves out a ton of detail — there are tens of thousands of pages of statutes, regulations, internal federal agency procedures, and court decisions guiding how all of this is interpreted and implemented. But please take my word that I honestly believe that no detail I omitted for conciseness changes the basic points above.
If all of us in the U.S. would be willing to actually listen to each others’ sincere concerns and do our best to answer each others’ questions, instead of just yelling at each other or retweeting our corners on the internet (left OR right) where everyone already agrees with us – well, I think we’d move our nation forward a lot more effectively.
HERE ARE SOME OF THE ADDITIONAL EXPLANATIONS THAT I POSTED AS “COMMENTS” TO THE ORIGINAL POST:
Yes, there are humanitarian provisions in U.S. immigration law – asylum and refugee status being the main ones, also processes known as U-visas and VAWA self-petitions. But they are limited to very specific, limited circumstances that don’t apply to most people, so I didn’t go into them when I posted the previous article a few months ago. That’s the difference between a Facebook post and a 10-volume law treatise…
The larger point I sought to communicate was that for most people, there isn’t a “line” to get into.
PS: The current U.S. Administration has very actively sought to narrow and limit the asylum and refugee options – for example, numbers of refugees admitted to the U.S. have plummeted, and a recent decision issued by Attorney General Jeff Sessions called Matter of A-B– attempts to eliminate asylum as an option for domestic violence victims.
It’s true that many people who use a made-up SSN to work do use the same number when filing tax returns, while others use an ITIN. And then they may get a tax refund if they’ve paid in more from payroll deductions that year than their total tax liability calculated for their earnings bracket, number of dependents, etc., just like anyone else who filed taxes. In contrast to the IRS, which is pretty happy to receive revenue no matter who is paying it, the Social Security Administration and state and local agencies that administer most public benefits programs for the federal government, confirm the authenticity of an SSN and proof of citizenship or other legal status when paying out benefits. Stated more simply, the government is very loose about checking your “papers” when taking your money in taxes, but very strict about it when paying benefits out. So that is why undocumented immigrants cannot collect Social Security benefits upon reaching retirement age, for example, even if payments into Social Security have been deducted from their paychecks for many years.
Some people have asked how they could support our work. Thank you!
Please go to: https://www.CCharitiesCC.org/donate/. Or, if you are reading this on the Catholic Charities website, simply click the donate button at the top of the page.
Then select “Family Immigration Services” on the drop down menu for directing your donation. Every dollar goes directly to providing legal services for immigrant families – buying office supplies, paying for gas for us to drive to Immigration Court hearings, etc
Website Manager’s Note: As much as Eric would like to respond to the thousands of questions we have received, he is the only lawyer at our small nonprofit office and already overwhelmed with cases for the many clients we serve. He never expected this post would be disseminated so widely.
Additionally, for those who have asked for specific legal advice, he thinks it is irresponsible for lawyers to provide quick legal advice over the Internet without meeting a potential client, learning about their history and situation in great detail, reviewing documents they may have, and giving them a complete and accurate evaluation. Otherwise, the lawyer risks missing crucial information and giving incorrect advice.
If you have legal questions about your case, here are two resources. The first is a tool for finding immigration lawyers in your local area who are members of the American Immigration Lawyers’ Association, our main professional organization:
The second is a list of nonprofit organizations accredited by the U.S. Department of Justice to provide immigration law services to low-income households: