I’ve been in the States for over three months now. This was my third emigration. The first was from Canada to the US when I was little. Then back to Canada, and now back to the US. The Canadian move was easy for me but I had to learn a lot about immigration law to bring my US-born partner and navigate the process.
As I attempted to return to the US as an immigrant, I was faced with the choice of getting legal help or using my legal information skills and doing a DIY emigration. I chose the latter, for a number of reasons. I think that many people could navigate the process by themselves for the US. But being able to research the law, to use legal information text and forms, and navigating the process can be a challenge.
The first decision point was whether to lawyer up or not. It had been 14 years since our last immigration and some of the fear and frustration had abated. Part of me thought, well, this can’t be too terrible. And part of me just wanted someone else to handle it.
Immigration is a huge step. But the process can be just as straightforward as getting a driver’s license from a legal information perspective. There are masses of laws dealing with driving and licensing. But in the end, for most people, it comes down to taking a written test and a driving test and meeting certain other requirements (age, vision, etc.). Sure, you may have to make appointments and wait for months and it’s not simple. But you don’t need to understand the law itself, or have legal support, except when you are spit out by the process.
To Lawyer or Not to Lawyer
One important feature: mine was a bog standard immigration. I’m a partner of a US citizen, all of our kids are dual US/Canadian citizens. I wasn’t anticipating any advocacy issues, it was almost certainly just going to be paperwork and time. At the beginning, I thought the biggest challenge would be the timing: getting a job to go to contemporaneously with getting the visa to go to the job.
I mentioned recently that I’d considered a TN visa, the NAFTA/USMCA provision that allows professionals like librarians to come in for a period of years. I spoke to a couple of lawyers in Canada to see about that process. The benefit of the TN visa was that, in theory, it could be done quickly. The drawback was that it had to be renewed and I was hoping to be a permanent US resident, on the way to US citizenship.
The TN visa would be useful for an earlier career law librarian who wanted to go and get experience in the much larger US market. The shorter timeline to acquire would work well when you are going from getting an interview to getting a job offer to having a start date. When I returned to Canada in 2007, our inability to move quickly – because of needing to get my partner’s status sorted out – almost sank that job.
In that case, having a legal professional help would have avoided unexpected delays and pitfalls. Even as much as I have confidence in my own legal research abilities, I am not an immigration lawyer. I know I’m going to go more slowly and will still not intuitively understand nuances. This happened a number of times over the past few years. If I had access to the TN visa and a job offer, I’d see hiring a legal professional as an acceptable business cost. The investment would be recouped within the first year, I would think.
In my case, when I started, I did not have a job to go to. I knew there was a high likelihood of getting the permanent resident visa due to my marriage to an American. And I knew that the delays were going to be the biggest issue, since I couldn’t work in the US without having the visa in hand.
I decided to go it alone, without a lawyer. In hindsight, I’d still say it was the right decision. The challenges that arose were not things a lawyer could have anticipated or fixed. Sometimes you just have to sit and wait. And the legal information for US immigration is pretty easy to navigate for someone with a US law degree, 25 years in a law library, and English and Lawyerish fluency.
Step by Step
The confusion in the immigration process for me wasn’t so much with the law as much as not knowing if the problem was a legal issue or not. In my case, it was mostly process issues. The page I’ve visited the most on the State Department’s web site is their starting page for immigration. It has a process map and it gets you into the point of the process that you’re currently experiencing.
This was the single most useful resource for me. In reality, some of these steps are clustered because you’ve got to complete them prior to a milestone, or sometimes you skip them. A bit like playing Candy Land or Chutes and Ladders. For example, since I’d worked in the US for decades, I was able to get a print out from the Social Security Administration that allowed me to skip the Affidavit of Support.
The thing you don’t realize at this point is the time it takes to cover each step. And this is partly because each case will take different amounts of time, although some prescribe that you have a limited amount of time to complete them. In our case, we went from step 1 in November 2019 to step 2 in March 2021, 16 months. This took me to the National Visa Center, a kludgy looking web site (it looks like an 800×600 circa early 2000s web app). This would be my online process home for most of the next year.
So far, I had not had to use any legal research. The initial forms are available online as PDFs and so it was a matter of completing the initiating petition and everything then moved online. I will admit to doing some research but, like most immigrants, I was more curious about how long each step would take. And, not surprisingly, the answer is “it depends.” The State Department is good about being transparent but it may not always be an answer you want to get.
Close Your Eyes, Take a Breath
The single biggest part of the immigration process at this time is letting the U.S. government know about you. The DS-260 form is a huge collection of information about your life since age 16. It’s the thing without which you can’t proceed. It’s an online form and it’s a typical legal form in that it fits the pareto principle: it’s great if you’re in the 80% who have no questions, not to great for the 20% who do.
I was already thinking about writing about my experience last March when I started the form. So I took some notes. Weirdly, I was able to speak to someone from the State Department who had worked on the form, and who happened to be on a call about my brother’s wrongful detention in Russia. Small world.
Forms are a part of our legal information delivery, even if the law library isn’t the creator. It was interesting to me how even this key form – the keystone of the entire process – still had ambiguity baked in. For example:
- I had to list my present employer. No surprise. But I only had one employer in Canada and was asked “was I previously employed.” And I was, but not in Canada, so had to answer “no” since, if you choose yes, the form suggested to me that it wanted only non-US information.
- You have to report on your parents’ provenance. In my case, they were emigrants from the UK (immigration runs in the family). But their addresses had to list a state or province, which don’t apply to the UK. So I just wrote in a country (England). It’s not uncommon to have forms reformat, for other countries, to suggest County or or drop the state/province when it’s known to not exist. Fortunately, there was just a text field. The form was designed for ambiguity but the labels can be confusing.
- The questions about your children assume their citizenship is non-US. So our kids, who are all dual US/Canadian citizens, were never going to “immigrate” to the United States for the purposes of this form. As I’m sure most immigrants do, I chose the most truthful (no, they were not going to immigrate later) even though the intention of the question seemed to me to be different from how I meant it.
I understand the limits that these forms – and processes, and bureaucracies – operate under. If you invite feedback about the form, you may be creating an expectation by form fillers that they can ask questions about the form or that someone is actively watching for these interactions. But I do wonder how forms like this get revised, not just by government lawyers in multi-hour meetings, to capture these sorts of nuances by people who have to fill them out.
I was fortunate to have lived in the United States for most of my life. Since Americans have a very low privacy expectation on personal information, all of my previous addresses back to my teens were in free, sketchy online databases. I’ve lived in 17 locations in the past 35 years, including dorms and short term apartments, and this helped to fill in the gaps in my immediate recall. Emigrate when you’re young.
One thing about the form is that it had a timer to test for inactivity. It’s a security thing. But the timer was irregular, so sometimes merely interacting with the form seemed to cause it to kick me out – clicking on SAVE or using the page forward button. This meant doing some of the form repeatedly.
I hadn’t really thought about this aspect of the user interface to legal information before. It’s usually outside the scope of what law libraries experience. We intermediate it – how to use a commercial publisher search engine, how to use an index – but a lot of the resources we use are flat. A PDF form that can be filled out or printed out. A book. A database that you can sit and read without being kicked out.
If I was doing this again (spoiler: I won’t be), I’d probably try to print off the empty form pages or cut/paste them into a Word document. It wouldn’t surprise me if others have taken that approach. And so it would be worth considering the ability to cut/paste or print a form to make this possibility easy. For example, a PDF can be a nightmare to copy into a Word document so perhaps web-based all-text forms are a better approach.
Immigration sites don’t make this easy. Seven years ago, I created a simple how to for immigration lawyers in Canada to be able to print off their client’s compiled online form as a single document, because Citizenship and Immigration Canada makes it impossible.
With the form done, now I just needed to sort out a handful of documents. When you think about it, it’s amazing how few documents you need. For better or worse, a handful of agencies know everything important about you. As you might guess, it helped that, in my case, most of those agencies were within the US.
The Paper Trail
This was one of the few times when I thought I understood the process and then didn’t and had to take another stab at it. The documentation is very specific but the terminology – what those documents may be called – is not. You can call to ask but you often get voice mail if you can even find a number. Information – and the expectation that is the only source you can access – has been pushed to the web. The other assumption you have to make in a legal process is that everyone knows what they’re doing.
I was worried about this step most because we’d struggled with it when coming to Canada. We were asked for a document that didn’t exist. This was how it went.
In early January 2008, we received a letter that said documents were due in December 2007. Citizenship and Immigration Canada (CIC) had sent them to an old address, not the one we had on file as our primary address. Then we collected the documents and found that one requested document didn’t exist. CIC wasn’t taking that as an answer:
January 3, 2008 Dear Sir, State of Louisiana police certificates are required as part of the application process. Failure to provide one may result in the refusal of your application for non-compliance. We regularly receive such certificates and we have yet to have a State police authority refuse to issue one. Perhaps you should put your request to someone other than a clerk and provide our letter making the request
A little bit snippy.
So we started over and got similar responses back from other inquiries with Louisiana state security services. No luck and the CIC staff now gave us a 60-day deadline. If we didn’t meet it, we’d be starting over.
But Canada is a little country and so I persisted by going all the way to the top of the food chain and writing to the Cabinet minister responsible. I soon had an extension and an acknowledgement that we’d been asked the impossible.
March 26, 2008 Dear Sir, Please be advised that you will be allowed an extension of time to submit the Parish police certificates. We apologize for any inconvenience. This office was only notified recently that the State of Louisiana would no longer issue State Police Certificates and that parish police certificates are now required for individuals who have resided in the State of Louisiana.
This is frustrating and one might suggest that, when a government agency finds that someone can’t fulfill a request, that they might investigate. It would seem fair to me. I mean, Libguides don’t update themselves! Anomalies in processing should trigger some sort of review. Perhaps we were the only people with Louisiana in our backgrounds applying to move to Canada.
In my case, I was lucky to be able to get everything I needed. I did get the wrong police report – it was certified but not the correct named document – and that delayed my process a week or two. I was very fortunate that it wasn’t longer.
By now, the delays of the pandemic had kicked in fully. In Canada, many government services were closed and not all had shifted to digital delivery of records. Since I needed a police background check by the RCMP, I was told it could be a matter of weeks to get it. In the end, it was back quite quickly.
Keep in mind that the documents are not the only thing that have a timed deadline in this process. A background check is only valid for a certain amount of time. Your medical exam has a shelf life too. So as the process drags out, you may find that you have to redo steps even though you’re not the reason for the delay.
When I finally went to Montreal for my interview, a person from a South Asian nation was also being interviewed. They needed a death certificate that it sounded like might not exist in their home country. And, like me, they had shown up with the documents they thought they needed. As it would turn out, you might have to provide a document that isn’t on any list.
The Final Gauntlet
The timing for my emigration was now completely out of the normal realm of possibility. Pre-pandemic, 18 months wasn’t an unreasonable amount of time to wait. I was able to start my documentary process at 16 months and it took until July, about 3 months, to finish. Most of that time was doing online requests and waiting for the mail to deliver the certified documents. Now I had to wait for my interview, the final step.
You could do document gathering in advance but they are only good for a certain amount of time. For example, I could have gathered documents while I was waiting to get to the National Visa Center. But they would all have had to be redone by the time of my interview. It’s one reason I followed the State Department’s flow chart as closely as possible.
This was the trickiest part because the times for interviews were now way off. And I also had a job offer. On one hand, it was great, because I wanted to stay employed as much as possible. On the other, the uncertainty about when I could go was unsettling and I had low confidence that the employer would keep the offer open the longer things dragged on. This stage dragged on for some months until, finally, in December, I had an interview date.
The interview date also meant I sort of knew when I’d be able to go to the US. It wasn’t a guarantee, since the visa could be denied. But I decided to rent an apartment anyway with a start date approximating my hoped for arrival date. I had my medical exam – all of which was now transmitted online, including the chest x-ray – and was ready for the final interview.
It was lucky, in the end, that I sorted out my apartment. When I got to my interview, it was the one thing they asked for that I hadn’t expected. And it meant that my visa status flipped to rejected, which gave me a bit of panic. It was also the one time I did a lot of research to make sure I understood what was happening.
It also got complicated because there was now a new portal to use. And I was told I could upload the lease to that site. But the lease was a digital file that was 8MB and I could only upload a 2MB file. Even using PDF splitters, I was never able to upload the file. That was even after finding I was uploading it to the wrong portal. But that rejected label was a huge stressor on top of trying to navigate this final step.
In the end, it was just moving paper. They sent me a packet and I had to send it back. It took time to go from the mail processing center on the south bank of the Saint Lawrence to the desk of the immigration officer. Then there was more latency before my status flipped over to approved. But I still think, on occasion, about what would have happened if I had not, 2 months earlier, sorted out housing and had a lease to send.
One purpose of law is to give certainty about conduct. Something is proscribed or allowed by law. Then you know whether your behavior is violative or not. I admit that I was frustrated to have to provide something that I didn’t think I’d need to, or had to, provide. Again, ambiguity in the process that results in delay or rejection without knowing it exists.
So all’s well that ends well. Except, not entirely. I had completely underestimated how much delays would continue after my arrival. I couldn’t open a bank account without proof of immigration status, which was not going to arrive for 2 months. I couldn’t apply for a state ID (driver’s license or Real ID) without the green card. 3 months in, I’m finally documented but it has impeded things like being able to access or administer, as law library director, our law library’s bank accounts.
It’s this sort of experience that makes one think: is immigration a legal issue? It’s certainly entirely based on law. But, while an understanding might help you navigate it more easily, it won’t necessarily help you to be successful. It’s a bit like having a map, to help with expectations, rather than just generally steering in a direction and following a road.
Bureaucracy is a great leveler in some ways. It looks universally accessible from the outside. But my citizenship, my language skills, my fluency with technology, all of those played a part in my ability to navigate and move smoothly through the process. It hides the potholes and pitfalls that people are stumbling through. Legal information knowledge isn’t necessary so much as a navigator.