‘Why don’t they just get legal?’: State of the law

Wait for visa often takes more than dozen years

Fitzekam Enlarge photo


Shea Fitzekam, the only immigration lawyer in the Four Corners, hears the same thing all the time from people she meets.

The most common thing I hear when I tell people Im an immigration attorney is ... Why dont these illegals just do it like my grandparents did? Why dont they just get legal? she said during an interview in her downtown Durango office.

The people she sees would like nothing more than to get legal but cant under our current immigration system, she said.

She offered this example: Presently, a U.S. citizen who wants to bring a sibling from Mexico into the country can expect that sibling to wait about 15 years for a visa.

If a citizen parent is applying for an adult son or daughter, the wait is about 18 years, according to the August visa bulletin from the U.S. State Department.

It was a lot easier for our grandparents, Fitzekam said. There were a lot more visas available.

Another misconception is that of anchor babies such a derogatory term, she said.

Critics allege illegal immigrants have children in the United States who are automatically citizens as a means to gain citizenship themselves.

Fitzekam said that the parents will have to wait until their children turn 21 before they will be able to apply on their behalf, and, if the parents entered illegally, they will have to leave the country and wait 10 years before they will be eligible.

Although there are rare exceptions, the law makes the premise of anchor babies a fallacy.

Another commonly held misbelief is that marrying a U.S. citizen is a free pass to citizenship.

Fitzekam said that if the spouse entered without inspection meaning no papers and has been in the country for more than a year, he or she has to leave the country and wait 10 years to apply.

A couples only hope for a more speedy reunion is a waiver given to couples who are able to demonstrate the separation would create extreme hardship to the citizen or legal resident.

Cases where waivers are granted involve a broad range of circumstances. But one of the more common ones is a serious medical condition.

A strong case would be if she had cancer, Fitzekam said.

She said Mexican immigrants seeking waivers represent the lions share of her cases.

Entering the process is risky because, if a waiver is denied, the spouse will be barred from re-entering for 10 years.

As part of the process, Mexican immigrants seeking waivers must travel to Ciudad Juarez, across the border from El Paso, Texas, for an interview at the consulate.

Immigrants who entered on a visa that has expired are allowed to complete the process in Denver.

Immigrants who have entered the country illegally more than twice since 1997 are permanently barred from receiving visas, if they stayed in the United States for more than a year before the second re-entry.

This may create the temptation to not disclose previous entries, but Fitzekam cautioned that lying to an immigration official, if discovered, also will earn applicants a permanent ban.

Theyre going to dig themselves deeper in a hole, she said.

Fitzekam deals with deportation cases, too. Frequently, these start with immigrants being stopped by law enforcement for a violation.

If Immigration and Customs Enforcement wants them, they are transferred to a facility in Aurora within several days. Most are eligible for bond.

She said the lowest bond she has seen in such cases is $5,000.

Once an immigrant is released, she said she will try to find a basis to argue the person should be allowed to stay.

Unfortunately a lot of people dont have any defenses, she said.

In those cases, she will fight for the person to be allowed to leave voluntarily.

This gives immigrants time to wrap up their affairs and prevents them from being hit with the five-year bar that being deported carries.

Sometimes thats all you can do, she said.