Annunciation House Newsletter - Winter 2005

“LAWFUL PRESENCE” CREATES HARDSHIP FOR FAMILIES FROM MEXICO

BY: JOHN BOUCHER

The words—“Don’t ask; don’t tell!”—continued to echo in my brain as I walked away from the Customs and Border Protection (CBP) inspection booths. I’ve always hated that phrase; we seem to use it when we want to try to sneakily get away with something - we don’t really like being honest with ourselves at times. But as I was unlocking my bike I realized I was more confused now than when I started this project. I’ve been trying to get some information; trying to learn something; trying to educate myself about this leviathan we might call immigration policy. Rosario was near tears the other day as she explained what it took for her to get to our house. She’s merely (sic) trying to comply with the legal requirements established by the Social Security Administration (SSA) for non-citizen survivor and dependent beneficiaries living outside of the US. Rosario and her three children, Pilar, Isela and Luis, have full rights to SSA benefits, as they are survivors and dependents of Rosario’s deceased husband Ricardo, a U.S. Citizen who died in 2003. By law, however, non-citizen or resident aliens living in Mexico are not allowed to receive survivor or dependent benefits. In order to become an exception to what the SSA terms the “alien nonpayment provision” (Social Security Act - Section 202(t)), Rosario and her children need to meet the requirements of “lawful presence.” Lawful presence requires that she, and many other beneficiaries like her, prove that they spent one 30-day period out of every six months living in the US, or physically report to a state-side SSA office once every 30-days. So why is this? Why, though a noncitizen, if she is a valid survivor of a US citizen, are she and her children required to make these periodic visits to the United States? Every six months her family uproots; her children are taken out of their schools; they make this long journey north from their home in Hidalgo, Mexico, (an hour north of Mexico City); she has to pay travel expenses to Juarez; and upon her arrival, navigate entry into the U.S. for her semi-annual “presence.”

Lawful presence has a long history. In 1940, when the SSA began paying benefits, there were no restrictions for non-citizens. In 1956 Congress enacted restrictions for undocumented workers (though at the time this did not apply to dependents and survivors). The Social Security Amendments of 1956 stated that noncitizens could only receive benefits if they resided within the US. If they left the US, however, benefits would be suspended (with some exceptions) after 6 consecutive months outside the US. Due to the inability to accurately “monitor the system”, the Social Security Amendments of 1983 began requiring survivors and dependents to meet the same residency requirements as workers mentioned above. In 1996, both the Personal Responsibility and Work Opportunity Reconciliation Act and the Illegal Immigration Reform and Immigrant Responsibility Act added even greater restrictions prohibiting payments to any undocumented persons who are not “lawfully present,” . . . unless nonpayment would be contrary to a totalization agreement (see below). It is important to note not only the origins of “lawful presence” but also the timetable that defines it: potential beneficiaries must be present one day per every 30-day period or for a 30-day period every six months. This is the law.

Totalization

But lawful presence does not apply to all noncitizen beneficiaries, only those from countries that have not made totalization agreements with the US and there are many. What exactly is a “totalization agreement?” Totalization agreements do several things:

1. when US companies send workers to foreign countries, the need to pay Social Security taxes in both countries is eliminated (and vice versa);
2. totalization protects benefit eligibility for workers who divide their careers between two countries—thereby “totalizing” their work history. And for our main concern here
3. a totalization agreement overrides the lawful presence requirement for noncitizen beneficiaries. Wow! That means if Mexico had a totalization agreement with the United States then Rosario, Pilar, Isela and Luis would not have to come to the US at all. Yes, that’s true, but not so fast.

On June 29, 2004 both the United Sates SSA Commissioner and its Mexican counterpart signed a totalization agreement, but this agreement has yet to be approved by the respective Congresses of the US and Mexico. Though past totalization agreements have incurred great savings for U.S. companies (approx. $800 million annually) and foreign companies also (about $200 million annually), it is argued that our relations with Mexico - both economically and socially - do not compare with other totalization countries. The US is economically more on a par with totalization countries and socially, the immigration “problem” that we are experiencing with Mexico is not comparable with these other countries. Both economic disparity and the immigration issue have stymied further progress in achieving a totalization agreement with Mexico.

Entering the United States

It’s important to keep in mind that the SSA is separate from the State Department and that both are separate from the Department of Homeland Security (DHS). The SSA is quite clear in explaining to potential beneficiaries the requirements of eligibility and lawful presence, but the SSA is not responsible for managing immigration or our ports of entry, that’s Customs and Border Protection’s job and CBP is under the auspices of DHS. But neither the SSA nor CBP is the ones who approve visas; that’s the State Department’s job, available through US Consulates. Anyone entering the US legally needs a visa or a visa waiver, a process that is both challenging and arduous for foreign nationals from poor countries.

In general, the State Department issues one of two types of visas: immigrant or non-immigrant. Immigrants plan to stay and settle in our country while non-immigrants are only here for a visit then plan to go back home. SSA beneficiaries fall into the non-immigrant visa category because they will be in the US only for the 30-day period necessary to fulfill the SSA lawful presence requirement. In Rosario’s case, living an hour’s distance from the US Embassy in Mexico City, she went there in February of 2004 to begin the process of obtaining a non-immigrant visa. To accomplish this, she made an appointment and was interviewed at the Consular Office. She explained her situation and presented the required documentation, which included her and her children’s passports, her husband’s death certificate and her award letter from the SSA that stated she was eligible for benefits and needed to fulfill the lawful presence requirement. But Rosario was summarily denied the visa. She was denied because she did not meet the economic solvency threshold that the State Department requires non-immigrant visa applicants to meet. Economic solvency is one of many factors used by Consular officers when determining an applicant’s entitlement to a non-immigrant visa. In essence, Consular officers may be considered the first line of immigration enforcement - they are trained to be skeptical of an applicant’s intentions. Section 214(b) of the Immigration and Nationality Act of 1952 states, “every alien . . . shall be presumed to be an immigrant until s/he establishes to the satisfaction of the Consular officer, at the time of application for a visa, and the immigration officer at the time of application for admission, that s/he is entitled to non-immigrant status.” In other words, the Consular officer will presume that Rosario and her children - though applying for a non-immigrant visa - are actually trying to immigrate permanently to the US. Furthermore, the “burden of proof” is on Rosario to prove otherwise. According to immigration law she must prove that she has a residence in Mexico which she does not intend to abandon; that she intends to enter the US for limited duration; that she seeks admission for the sole purpose of fulfilling her lawful presence requirement; and (what is the closest definition to economic solvency that I could find, from a US Consulate website):

The applicant must be able to show reasonably good and permanent employment, meaningful business or financial connections, close family ties, or social/cultural associations which will indicate a strong inducement to return abroad. If the Consular officer is not satisfied of the applicant's intent to return abroad or to abide by the terms of the nonimmigrant status, the officer is required by law to refuse the visa. However, if it appears that the visa refusal can be overcome by submission of additional evidence, the applicant shall be so informed.

Rosario was refused. She said that the person who interviewed her was not the one who gave her the final decision, but someone at the window. She asked why, but was not given an explanation. She told me that I would not believe what it is like: “there are thousands of people waiting at the U.S. Embassy in Mexico City everyday.” She went home.

Canadian citizens, on the other hand, don’t even need a visa to enter our country. All they need is a birth certificate. Foreign nationals from countries on the Visa Waiver Program list don’t need visas either. What is going on here? The USA Patriot Act legislated the requirements for the Visa Waiver Program and they are extremely extensive: a country must implement machine-readable passports; travelers must be in possession of a round trip ticket and plan to visit for less than 90-days and show economic solvency - evidence of both funds to cover travel expenses and compelling social and economic ties abroad. Visa Waiver countries include Andorra, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and United Kingdom. It’s obvious that these are some of the most affluent and “white” countries in the world. If you have not heard of Andorra, Brunei, or San Marino, look them up: they’re doing quite well for themselves, and Slovenia itself has recently entered the European Union.

In August 2005 (after missing her lawful presence requirement and therefore benefits) Rosario called a Mexican Consulate in the US and explained her situation - the SSA told her to come the United States, but the State Department wouldn’t grant her a visa. Rosario was encouraged to try again. Rosario called the embassy and re-explained the urgency of her situation and how she had failed to meet the SSA residency requirement. Rosario is poor. She needs her husband’s SSA benefits. The irony is that this was also the source of her problem. Due to her poverty she needs to come to the US and due to her poverty, she can’t get in.

Rosario was given a fax number and told to send everything in again: re-explain her case, the urgency, her husband’s death certificate, her SSA award letter, a contact phone number, and get this, repay the four application fees: all told over $700. This time it worked; someone must have said a prayer. She arranged passage and was off for Juarez, Mexico, a port of entry into the US and sister city to EL Paso, TX.

Ports of Entry

Ports of entry are under the auspices of Customs and Border Protection (CBP) and CBP officers have the final say as to who can actually enter the US. Upon arrival at the Paso del Norte port of entry, Rosario fills out the required customs declaration and Form I-94. Form I-94 is required of all non-immigrants who then use it to enter the US and are required to turn it back in when they depart the US. CBP also uses Form I-94 to allow entry as a Humanitarian Parole or Humanitarian Waiver of Documents. While CBP lacks the authority to issue visas, under emergency or extraordinary situations or when a CBP officer deems it appropriate, Form I-94 can be used to “parole:” a non-immigrant into the country. Examples of “parole” would be children needing medical care available only in the US, or a person wanting to see a family member who is dying.

For the past 3-4 years, Form I-94 had been used for SSA beneficiaries, bypassing visas and passports. A beneficiary could show up at the CBP office and gain entry into the US after providing valid identification, the SSA award letter and a courtesy letter from the SSA or Mexican Consulate appealing for the beneficiary’s entry. CBP processed significant SSA beneficiaries from all parts of Mexico in this manner. In the wake of September 11 and the more stringent inspection procedures, e.g. fingerprinting, background checks and in-depth questioning, Form I-94 has become much harder for SSA beneficiaries to obtain. They can no longer rely on the $6 Humanitarian Parole but must now obtain a passport ($100) and pay for the non-immigrant B2 visa ($100). This is what Rosario does.

After Rosario was issued Form I-94, she proceeded to the inspection booths where she faced the final inspection officer before entering the US. But Rosario and her children got pulled back into the CBP office and were interrogated as to how they would spend their time during their stay in the US. Rosario responded that she planned to stay at Annunciation House and that her children would attend school during the 30-day period. The Inspection Officer explained to her that she couldn’t put her children in school while on a B2 visa (which is true). Rosario then explained that Annunciation House had told her that state law requires that school age children attend school (which also is true). Argh! Now what’s up?

In late 2002, no more studies were allowed under the B1 (business) or B2 (tourist) visas: if a child wanted to study s/he needed to get a student visa. Rosario does not necessarily want to put her kids into school, that’s not why she’s here. But it’s the law. She has to put her kids into school. The McKinney-Vento Homeless Assistance Act of 2001, Subtitle B - Education for Homeless Children and Youth. Section 721 (g)(3)(C)(i) states that:

The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth is unable to produce records normally required for enrollment, such as previous academic records, medical records, proof of residency, or other documentation.

The spirit of the McKinney-Vento Act seems to be asking, “Why should children suffer from the possible shortcomings of their parent(s) or the system they are part of?” Children are to be immediately enrolled in school despite history, records or documents. So which law overrides the other, the visa requirement or the McKinney-Vento act? They seem to be in direct conflict.

So what happened to Rosario? She’s reprimanded by CBP; has all of her family’s belongings thoroughly searched; told that she will be breaking the law if she puts her kids in school and that her visa will be revoked for 5 years. She asks to speak to a Mexican consulate representative, but is not responded to and is instead made to sit and wait. She is then told that her B2 visa will be revoked and replaced with Humanitarian Parole. She waits longer. Finally, on her own, she manages to speak to a Mexican Consular officer. In the end, after 10 hours of waiting, she is given her original documents back and is told that she’s been a big headache and not to do it again. She’s told that a computer will monitor her and if she makes use of any social services, they will know about it . . . and that Annunciation House is breaking the law and that she shouldn’t be affiliating with them.

I’m not sure what to say at this point, I’m not sure what to feel -- for me, or for Rosario or for her children. She is here now; she “made it.” She has a few more weeks to go. She has not put her children into school, though I warily told her CBP will never know. Even a CBP officer told me that they would never know: “Don’t ask; don’t tell!” is what he said, while also denying the above version of Rosario’s story. I like putting our children in school - not that what I like really matters. Though it’s challenging for both the students and the school system, it’s the law. I don’t know how to advise Rosario, though the first thing I said to her was “Welcome to the US,” and I meant it. I’m not sure she heard it from anyone, and even if I say it, I’m not sure she feels it after what she’s been through. I don’t know what kind of visa to tell her to get or if I should be telling her to put her kids in school. I’m not taking the risks, she is . . . and she’s scared. The one thing I really can’t bring myself to say to her is: “Don’t ask; don’t tell!” . . . or should I?