Immigration and Legal Classifications: What Social Workers Need to Know
Fernando Chang-Muy, M.A., J.D., Thomas O’Boyle Lecturer, University of Pennsylvania School of Law; Founder and Principal, Solutions International
Given the evolving demographics with the movement of people across borders, social workers and their organizations constantly adapt to ensure that programs and services respond to meet the needs of diverse clients. Understanding a legal immigration framework will allow providers to develop, in partnership with the client, a comprehensive action plan to move forward. Adding immigration to a list of continuing education issues will help practitioners provide better advocacy at both the individual and systems level. The ultimate desired outcome is a consumer who is an engaged participant in his or her own life and that of the community.
Entering the US Temporarily as a Non-Immigrant
US immigration law sets out a variety of ways in which newcomers can enter the country legally. Typically, non- immigrants (to be called “newcomers” in this article) who enter the US for a short term, generally do so for: 1) humanitarian reasons, 2) tourism, 3) educational opportunities, or 4) short-term employment.
In order to enter the US, all newcomers must have a passport and a visa. Just as in order to enter a room, one needs a door and a key - a passport (issued by the country of origin) is analogous to a door, and a visa (issued by the US Embassy or consulate in the country of origin) is the key permitting newcomers to enter the room (in this context, the United States.) All newcomers must have a passport and some may need to have a visa. The Visa Waiver Program (VWP), however, allows citizens of specific countries to travel to the US for tourism or business for up to 90 days without having to obtain a visa. In turn, and as a reciprocal agreement, US citizens similarly do not have to apply for a visa to enter those countries. All countries participating in the Visa Waiver Program are regarded as developed countries (e.g. most European countries).
A visa allows newcomers to travel to the United States as far as the port of entry (airport or land border crossing). Immigration matters are the responsibility of the U.S. Department of Homeland Security (DHS). The US Immigration officials working for the DHS Immigration and Customs Enforcement (ICE) branch, have the authority to permit newcomers to enter the United States. Officers from ICE decide how long newcomers can stay for any particular visit. (www.unitedstatesvisas.gov/whatis/index.html)
When meeting with a newcomer client, providers may want to ascertain how the person first entered and what immigration status the person is in now, as a way to later determine a legal remedy. The social worker may want to refer the client to a non-profit agency that specializes in immigration issues. In conducting intake and to help establish rapport and honesty, providers should emphasize that all information is confidential.
Although there are over 20 ways that newcomers can enter the US for a short term, some in which a social worker’s assistant might be needed include women who enter to marry a US citizen and then are victims of abuse, or persons who are trafficked into the US for sex or other work. A description of all the visa types can be found at www.visalaw.com/abcs.html.
Entering or Remaining in the US Permanently
Individuals may also enter the US as immigrants and be able to live here permanently. If they choose, they never have to return to their country of origin. Just like non-immigrant visas are for individuals who want to enter temporarily, immigrant visas on the other hand, are for people who intend to live permanently in the U.S. The terms “green card” or a “lawful permanent residence” are all synonymous.
There are a number of methods by which newcomers can enter or remain in the US legally and permanently. Social workers can be particularly helpful in situations where newcomers are trying to obtain Refuge/Asylum status, relief under the Violence Against Women Act (VAWA), Special Juvenile Immigrant Status (SJIS) or who are trying to pursue a process of Cancellation of Removal.
The social worker’s role in providing support to newcomers is perhaps most relevant in applications for asylum. The social worker can help the asylum applicant navigate the system helping to:
obtain legal assistance in filing the case;
draft an affidavit to submit to the government, helping to prove the first prong of the refugee test- that the applicant is indeed afraid and that the social worker is providing counseling or therapy to alleviate the fear of past (and future) persecution if deported to the country of origin; and
conduct research on information on human rights abuses to support the second prong of the definition- persecution as substantiated through reported human rights violations.
Equally important, social workers can support newcomer women who are survivors of violence. Before US and permanent resident husbands could hold newcomer women in virtually slavery, dangling the application (or not going forward) for a lawful residence as a carrot, forcing the woman to endure abuse.
Through the immigration provisions of the Violence Against Women Act, newcomer women married to lawful permanent residents or US citizens, can self-petition without the need of the abusive sponsor/husband. The immigrant woman can safely flee domestic violence and even prosecute her abuser. Social workers can help to prove abuse by:
Submitting affidavits from others that the marriage was ended within the past two years for reasons connected to domestic violence;
Getting copies of the Protection from Abuse Order;
Obtaining hospital records, if any, of medical treatment because of the abuse;
Obtaining police records to show that the police had been called; and
Submitting an affidavit that the social worker is providing counseling.
Newcomer children who are dependents on the state because they are victims of abuse, neglect or abandonment, are among the most vulnerable people in the United States. Immigrant children who have experienced abuse suffer the same emotional and physical problems as abused U.S. citizen children – and often more. In many cases, the children or their advocates can obtain a critical legal benefit that will help the children gain control in their lives and successfully transition to adulthood. Immigration law provides that dependent immigrant children in permanent placement can apply for lawful permanent residency as “special immigrant juveniles.” In this scenario, social workers can help by:
Completing the application for this immigration status;
Helping to obtain a special medical exam;
Obtaining fingerprints, photograph, and proof of age; and
Getting an order from a State family court that the child is eligible for long-term foster care due to abuse, neglect or abandonment.
Presently, persons under deportation proceedings may achieve permanent residence through a process called “Cancellation of Removal”. In order to obtain this remedy or relief, applicants must show that they: 1) are continuously present in the U.S. for a minimum of ten years, 2) are persons of good moral character, and 3) their deportation would result in " exceptional and extremely unusual hardship" to their parents, spouses and children who are U.S. citizens or permanent residents.
Social workers can assist to prove these criteria described above by:
Gathering materials to prove the “continuous presence” (bills, letters, affidavits from neighbors, teachers or even social workers themselves) and
Proving the second criteria “Hardship” by affidavits attesting that the applicant’s deportation will result in "exceptional and extremely unusual hardship" to their qualifying relatives.
Exclusion from entering the United States and Deportation
Immigration law also excludes persons from entering the United States. All nations have reasons for excluding foreign nationals from entering their borders. Most governments base their reasons for inadmission based on health, economic or criminal reasons. The US is no exception. Clients may approach a social service agency not necessarily for themselves, but for a relative who wishes to enter as a non- immigrant or as an immigrant.
Section 212 of the Immigration Act states that aliens will not be admitted into the US for many reasons, but some of particular concern to social workers are those grounds related to health and criminal grounds. For instance, a newcomer who has a “communicable disease of public health significance, including HIV, will not be admitted. However, a waiver exists and a social worker’s role in helping the newcomer obtain a waiver is crucial. A social worker’s affidavit can help in attesting that if the individual is admitted to the US there will be minimal danger to the public health, minimal possibility of the spread of HIV, and no cost to a government agency without that agency’s prior consent. The affidavit should state that counseling will be provided to insure these outcomes.
Immigration law also includes sections dealing with the deportation of persons who are already in the US. Legal reasons for removal are based on health, criminal, or economic grounds and are stated in section 237 of the US Immigration Law.
The final portions of the immigration law that may be of relevance to social workers, deals with how immigrants can become citizens. The US, unlike other countries, grants citizenship under three circumstances: 1) citizenship by parentage 2) citizenship by birth on US soil and 3) citizenship by application. Applicants for citizenship, however, must comply with US citizenship laws, which include:
Being at least 18 years old;
Being a permanent resident of the United States;
Having lawful permanent residency for three to five years;
During the last five years being inside the United States for 30 months or more;
Ability to read, write and speak basic English;
Ability to pass the civics test; and
Being a person of good moral character.
Social workers may want to urge their lawful permanent clients to seriously consider applying for US citizenship since benefits include the ability to become civically engaged: voting, advocating, and demonstrating. Social workers can help by referring applicants to resources in the community that can help permanent residents prepare for the citizenship test. However, the government will waive taking the test if the applicant has a physical or psychological condition. If this is the case, the social worker can assist in attesting that such a condition exits.
By understanding legal immigration framework, social workers can, in partnership with the client and legal advocates, develop a comprehensive action plan to support the newcomers’ strengths, resolve challenges, and support newcomers who can become engaged participants in their own lives and within the community.