Naturalization and Overstay of Visas

Guest blogger: Marissa Herrera, law student, University of San Francisco:

            Every volunteer opportunity I have had I happily take. I help any non-profit with citizenship applications, I help with writing declarations, conducting interviews so that families are not torn apart during the adjustment process, and I help screen applicants applying for citizenship. I go down the list of questions where any affirmative answer would lead to a red flag, prompting an attorney consultation before the applicant can start his or her citizenship application.

            The first time I looked over the list of red flags they made sense, “Have you ever been arrested,” “Have you ever lied to an immigration officer in order to obtain entry.” One question, however stood out to me the first time I read over the list –  “Have you ever overstayed your visa.” This is a red flag?  How is this a red flag? I immediately thought of my own mother who overstayed her visa in 1978 so she could reunite with her mother and siblings, I thought of my uncles who fled to the United States after war broke out in El Salvador so that they could also be back in the comfort of their family. I thought to myself, “How is overstaying your visa a red flag when that is the only path to citizenship I have seen?” As I kept volunteering I realized that it was not only the path my mother and her family took to get permanent residence and eventually citizenship, this was the path taken by many. But this path is not wrong or right – no form of entry is genuinely wrong or right I learned. The visa application worked here, and in other instances I encountered because of the class and status of the applicants – my mother was from a well off family that had to  regroup after the passing of her father, and all other green card holders I met had told me of the class they came from. Yet, both these people that overstayed their visa and the groups I would help who had entered without inspection all had fear, all came with no real intention to stay and came to the United States the “wrong” way – but still both groups had begun a life here and eventually made the United States their home.

            When my mother came to this country in 1978 it was to surprise her mother who had left El Salvador years before. My mother, 1 of 6, had been contacted by her sister who told her the plan to go to the consulate and tell them she was coming into the country to go to Disneyland. Although my mother was only a teenager she went to the consulate, and got her tourist visa – she never went to Disneyland. It was with that tourist visa that she entered this country and was reunited with her mother, her siblings, and began her life in the United States. The 1970s were a different time, with Jimmy Carter in office and little to no bigoted narrative about the border and Latinos in mainstream culture, it was simpler – easier even – to obtain your tourist visa and gain status through the visa. Hearing my mother tell her story I never thought of overstaying a visa as a red flag or breaking the law, I always thought of overstaying your visa as an option. As a child I would tell people my mother entered the country the “right way” thinking the only “wrong way” was through crossing the border illegal like I had known some family members to do. So it was a shock to me when I learned it is not legal to overstay and it is something that could ultimately harm your citizenship application.

            Comparatively, the more I worked with applicants that already had their green cards and were applying for their citizenship, more times than not they had overstayed their nonimmigrant visa. Applicants would tell stories of coming from Mexico or El Salvador in the 70’s and 80’s and simply adjusting their status, family members would be here waiting for them to then petition them later once the visa ran.  These applicants like the applicants I was helping with I-601A waivers had entered and stayed without the formal process laid out by the Department of Justice and Homeland Security and had successfully created lives. The more I worked with these two groups the more I realized how there is no wrong or right way to enter the country, my entire life I had thought of entering as undocumented or without inspection meant you came the “wrong” way when you could have easily come in the “correct” way as I thought my mother had – but in reality both these groups curtailed the immigration process and created lives. Overstaying your visa is not worse or better than entering without inspection, and neither methods should be deemed “bad” or have a negative effect on the citizenship or legal permanent resident process  – I see that now more than ever before.

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