Am I illegal?

There has been quite a bit of immigration law activity since I last posted over one month ago. At first, I was just trying to take it all in. Now, I’m ready to comment on it.

The State of Arizona has decided to enforce immigration law by granting state and local police the authority to question someone whom they reasonably suspect is illegally in the United States. Advocates are justly concerned about racial profiling. After all, it is not unlikely that the color of one’s skin or the language one speaks will lead a law enforcement officer to believe a person is not legally in this country. Yet let me assure you that there are plenty of white Europeans who are also illegally present in the U.S. after entering illegally or overstaying a temporary visa. Thus if law enforcement is considering only brown skin and Spanish language, then they may not be doing their job effectively. They may need to visit a French restaurant or two to determine that the waiter with the charming accent is there to lend authenticity to the place, regardless of whether he’s authorized to work here or not.

In addition, I have a concern about this new legislation as well. Simply said, it is difficult for someone who is not well versed in immigration law to determine whether a person is legally in this country, and I’ve seen even the U.S. Border Patrol struggle with this issue.

For example, did you know that someone with an expired visa can still be present legally because they are in lawful status? And, on the other hand, someone whose visa is valid can be out of status, and hence, illegally present in this country? This issue alone has caused some disagreements between Border Patrol and foreign student advisors in our region of the country.

A foreign-born student may enter the United States with a visa to study. However, the visa itself is simply an entry document authorizing one’s admission to the country. It does not authorize a period of stay. In fact, most students are admitted for the “duration of their status.” That is, the time they require to complete their program of study whether that is a summer language course or a PhD. In order to be deemed in status, a foreign student must have another document, called an I-20, which is issued by the school which he or she attends. The I-20, which is merely a sheet of paper or two, confirms that a student is complying with the requirements of student status, such as following a full-time course study. Authorities who have never encountered such a document may believe a student is illegally in the country if his or her visa is no longer valid. However, as long as the I-20 is valid, the student is legally present.

By the same token, foreign born tourists may get a visitor visa that is valid for one year or ten years, or like Canadians and many Europeans, may not even require a visa to enter the U.S. However, the visa does not reflect how long a tourist is authorized to remain in this country. Another document, an I-94, that is issued by immigration officials at the airport or other port-of-entry (except to Canadian citizens), determines how long one is allowed to stay. Once a visitor’s period of stay lapses, he or she may be illegally present in the U.S. despite what the visa may indicate.

In both the case of the tourist and the student, working without authorization may also render him or her out-of-status. Therefore, both the visa and the accompanying documentation may indicate legal presence, but the act of working illegally has rendered the foreign national “illegal.”

Those are a lot of technicalities, yet I could go on about the subtleties of determining whether one is legal or not. I wonder if Arizona’s law enforcement community can catch up in the few months remaining before the law goes into effect.