The Statue of Liberty stands tall in New York Bay, a beacon to immigrants worldwide 
 

The issue of whether undocumented immigrants should have a path to citizenship or just indefinite legal status continues to divide Congress.

Q: What is the status of efforts to get legal status for undocumented immigrants? Is it true that Obama has already put in place a program to help longtime residents?

Tiffany Prince, Brooklyn

A. Unfortunately, most undocumented immigrants still have no path to legal status. Congress has yet to pass a legalization program, and resident Obama has continued his massive deportation effort. Some immigrants’ rights advocates are hopeful that we will see immigration reform in the next two years. It’s possible, but I remain pessimistic.

Republican House Speaker John Boehner says he wants to bring immigration reform legislation for a vote, but he has yet to outline his proposal. Rather than follow the U.S. Senate's approach of broadly reforming our immigration laws in a single bill, Boehner plans a number of separate bills. These bills would address items such as increasing border enforcement, granting permanent residence for undocumented youth and perhaps providing legal status for other undocumented immigrants. It is unclear whether he will allow a vote on giving most undocumented immigrants a path to permanent residence and U.S. citizenship. Some advocates see a hopeful sign in Boehner’s hiring of Rebecca Tallent, a former Chief of Staff to pro-reform Senator John McCain, to coordinate his immigration initiatives.

Dividing Congress more than any other issue in the immigration reform debate is whether undocumented immigrants should have a path to citizenship or instead, just indefinite legal status. Legal-status-only Republicans have found allies in a small group of immigrants’ rights activists whose main focus is on stopping deportations. Their argument is bolstered by a Pew Foundation poll that found that undocumented immigrants care more about not being deported than getting U.S. citizenship. What did Pew expect? Of course undocumented immigrants’ first concern is avoiding deportation. You don’t need a fancy poll or genius sociologists to tell you that.

Meanwhile, granting legal status without a path to citizenship will create a divisive two-tiered citizenry. These legal-status-holders will be taxed, but they won't be able to vote. They won’t qualify to serve in the police or fire departments and they may not be able to join the military. They will be inevitably seen as “second class citizens” required to carry a pass to prove their right to be here. Apartheid, a system where some people in a society have more rights than others, was a bad idea in South Africa. It is a bad idea for the United States

Q: My grandfather died before his married daughter could get her green card. Can her grandmother step in and help? My grandfather, a U.S. citizen, petitioned for his married daughter in 2004. Unfortunately, my grandfather died earlier this year.

Julie, Greenwich, CT.

The woman you write about may be able to get her green card based on her father’s petition. And, your grandmother may be able to help. How she asserts her right to an immigrant visa depends on whether she is abroad or already in the United States.

When a petitioner (here, your grandfather) dies, the petition becomes invalid if the beneficiary (here, his daughter) is abroad. USCIS can nevertheless reinstate the petition when if the petition had been approved before the petitioner’s death. To get the petition reinstated, the beneficiaries must prove that they deserve permanent residence for humanitarian reasons.

Where a family beneficiary is already in the United States, the surviving relative may qualify for an immigrant visa even if USCIS did not approve the petition before the petitioner’s death.

Note that the rules are different, and more generous for the widow or widower of a U.S. Citizen.

With the petitioner deceased, the beneficiary will need an affidavit of support from another relative. Qualifying relatives are the beneficiary’s spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

Q: I came to the United States in 2009 in F-1 International Student status. I plan to marry a permanent resident. Once I marry, can I immediately apply for an immigrant visa here in the United States? I came here in 2009 and I have always been in lawful status.

Name Withheld, Chicago, IL.

Not immediately, but if your wife-to-be petitions for you immediately after you marry, you can probably apply for permanent residence within a few months. That’s provided you maintain lawful status here.

Unlike the spouse of a U.S. citizen, the spouse of a permanent resident is subject to an annual quota. Fortunately the quota for the spouse and unmarried children under 21 of a permanent resident is only backlogged a few months. So, once you marry, have your wife file USCIS form I-130, Petition for Relative. That will establish your place in line for a visa, called your “priority” date. Then, check the monthly Department of State Visa Bulletin. When your priority date is before the date listed for the Second Family Preference-A, you can submit your application for permanent residence.

Allan Wernick is an attorney and director of the City University of New York’s Citizenship Now! project. Send questions and comments to Allan Wernick, New York Daily News, 4 New York Plaza, N.Y., 10004 or email to questions@allanwernick.com. Follow him on Twitter @awernick.