by Elizabeth R. Blandon

There are approximately 13 million undocumented foreigners in the United States. Native born citizens rightfully wonder why there are so many, especially given that employers are willing to hire and sponsor foreign workers. Although foreigners can remain in the U.S. temporarily with status (usually after entering with a visa) or permanently with residency, the top reasons why many are not legal are as follows:

1. Persons who entered without inspection cannot usually adjust status. Unless a special provision applies, a foreigner must enter the country legally to benefit from immigration laws. Examples of those provisions, which allow illegal foreigners to become residents, are laws such as the amnesty known as 245(i) and the Cuban dry foot/wet foot policy. An attorney can determine whether legal status is possible.
2. With few exceptions, persons who allowed their status to expire cannot remain legally. Anyone who entered legally -- with a tourist visa, for example -- and then remained beyond the authorized stay gets caught in a dilemma. The visa previously used to enter the country is cancelled as a result of overstaying. In order to become legal again, she must leave the United States, apply for a new visa at a consulate or embassy abroad, and return. Some persons remain in the U.S. instead of risking a denial of a visa. An attorney can help determine whether the foreigner should take the risk.
3. Persons who are in the United States without authorization may decide to remain to avoid the consequences of leaving. The immigration laws actually penalize those out-of-status foreigners who wish to leave. Anyone who has been in the country more than 180 days without status and leaves cannot return to the U.S. for three years. Likewise, anyone who has remained for over one year without status and leaves cannot return for ten years. An attorney can prepare a waiver for this penalty.
4. Residency is limited by number. Foreigners who responsibly manage their legal status must still deal with a quota system known as preference categories. Those with the higher levels of education and experience are placed in a higher preference category and obtain legal permanent residency faster. For example, at this time, persons with education less than the equivalent of a master’s degree are placed in the third preference category and cannot become residents. An attorney can represent the foreigner’s credentials so that she is placed in the favored second or first preference category.
5. An employer’s sponsorship of a foreigner is too lengthy for most businesses. Unfortunately, employers face a difficult time sponsoring foreigners under the current immigration system. For example, businesses wishing to sponsor professionals under the H-1B visa must usually file a case in April so that the employee begins to work in October. Through the use of other visas, an attorney can draft a strategy so that the employee begins working at the earliest opportunity.