Sabine and Michael Berchtold came to Colorado Springs over the Thanksgiving holiday in 1996, she from Germany, he from Switzerland, on work visas that allowed the young married couple to own a business stateside if they met certain conditions.
Two weeks later, they opened Uwe’s German Restaurant, which had been under previous ownership.
More than a quarter of a century later, a cloud of sadness rises above the whiffs of jaeger schnitzel, bratwurst and sauerbraten at their popular eatery.
Despite applying every year to obtain a green card and working with several attorneys to become permanent legal citizens, the Berchtolds have yet to succeed.
If they continue to fail, they will have to leave the United States when they sell the restaurant.
They’re not sure when that might be. While they say they love what they do, with Michael, 55, manning the kitchen and Sabine, 56, running the front end for decades, they’d like to retire at some point and enjoy the fruits of their hard but rewarding labor.
“We’re here now 26 years, and it’s home,” Sabine Berchtold said. “Knowing we cannot stay, it hurts. It weighs on your mind.”
The Berchtolds are among an estimated 800,000 business owners living in the U.S. in the same unsteady boat.
“It seems crazy, but it happens,” said Professor Violeta Chapin, co-director of the Colorado Law Clinical Program at the University of Colorado in Boulder. “This particular type of business-related immigration hurts business people who have invested a significant amount of money in our economy and are unable to transfer to green cards.”
But the E-2 non-immigrant investor visa that the Berchtolds have — which requires holders to contribute $120,000 toward a business in America and employ at least two American workers — is designed to be temporary, said Zachary New, a lawyer with Joseph & Hall PC in Denver and a founding member of the Immigration Law and Policy Society at the University of Colorado School of Law.
The visa allows for “quasi-permanent residency,” New said, and implies that the holder plans to return to the country of origin.
“The U.S. government gives you permission to operate the business and grow it, after you invest,” he said. “It’s difficult to convert it to permanent residency.”
Sabine said that type of visa was the only chance for her and her husband to be able to come to the United States because they did not have relatives here.
At this point on their journey to become legal permanent residents, Sabine and Michael are angry about the massive influx of immigrants seeking asylum or improved economic conditions now crossing the southern border.
It’s unfair, Sabine said, that thousands of people are being allowed in daily and immediately receiving some assistance and access to the same system that the Berchtolds have been steadfastly trying to crack for years.
“They can come in illegally and get a green card, and they’re set to go,” Sabine said.
Undocumented immigrants who enter the U.S. without a visa or other proper paperwork or authorization don’t receive as many benefits as some people might think, Chapin said.
“Lots of people get nothing,” she said. “They somehow make their way in the country, they have no work authorization, no access to federal benefits, it’s very difficult for them to access health insurance. Yet they survive.”
While only legal immigrants can qualify for federal subsidized housing and food assistance, Colorado and some other states provide undocumented people access to state-sponsored health insurance and help paying for college tuition. And many community nonprofits and faith-based groups help with basic necessities.
And, said Chapin, “Undocumented residents pay taxes, even though they don’t have lawful status.”
An estimated 11 million people live in the U.S. illegally, although some entities, including the Center for Immigration Studies of New York, say that number is undercounted by up to 1.5 million.
In many cases, new arrivals must follow the same procedures as people who have been here for years and are requesting legal status or citizenship, attorneys said.
Why are so many immigrants coming to Denver? Town hall seeks answers
However, New said, asylum seekers at the border who can immediately pass a screening proving “credible fear” as their reason for leaving their home country, can receive a work permit and be expedited for asylum consideration.
“It’s not taking away from anybody else’s ability to get their own lawful status,” he said. “Having orderly and efficient border processing is only helpful, as immigration courts are increasingly backlogged.”
Asylum cases can take years to be heard in court, though, New said.
“With the way the numbers are rising, it’s going to take four to five years from getting into immigration court until a hearing, unless you’re able to push something faster,” he said.
Sabine believes that while new arrivals may have to get in line for backlogged immigration services, they are clogging what was already a notoriously sluggish system.
New agrees the laws are antiquated and “do not work in a lot of the ways they were intended to when they were written.”
But each part of immigration law has an objective, he said. For example, the origin of asylum law dates to the Holocaust and is designed to protect people escaping persecution.
Work permits for skilled and unskilled laborers and investors such as the Berchtolds serve different needs, as do the allowances made for Ukrainian, Afghan, Cuban and Haitian nationals who are paroled into the U.S. on temporary stays and work authorization.
“There are a multitude of programs, and certainly things need to be fixed and tweaked, but it’s unfair to say one group of individuals, especially vulnerable individuals, is being treated in a preferential manner as compared to individuals going through a lawful manner in a different way,” he said. “Each process has its own purpose.”
Obtaining green cards, also known as the diversity visa program, from among the 50,000 the U.S. issues each year — which includes 1,000 from Germany and 500 from Switzerland — would enable the Berchtolds to remain in the U.S. permanently and forgo the current complicated process that forces them to return to their native countries every four years to renew their visas through the American embassies.
Also, every two years, they must leave U.S. soil for an unspecified amount of time and have their passport stamped upon re-entry.
Only by sheer luck did those years of mandatory travel not come up during the height of the coronavirus pandemic, they say.
The immigration structure has not provided the path to citizenship they seek.
“Our only hope is to win the green card lottery,” Sabine said.
Immigrants are more likely to be successful in America if they are granted legal citizenship, according to the Center for Migration Studies of New York, which held a webinar on immigration in January.
The progression to legalization enables immigrants to attain higher income, education level, English language proficiency and health insurance, said Donald Kerwin, co-author of a new report from the Center for Migration Studies of New York, “Ten Years of Democratizing Data: Privileging Facts, Refuting Misconceptions and Examining Missed Opportunities.”
“It’s important to move from one category to another,” he said. “It benefits the entire U.S., not just the people impacted.”
Immigration is an ongoing, hotly debated political issue, with both sides of the partisan coin blaming the other for the flood of immigrants entering the U.S., and the chasmic disagreement over how to handle the situation.
The report Kerwin co-authored with Robert Warren provides three recommendations for provisional federal changes to reduce the logjam of applications and provide what they think would be a more equitable method for people like the Berchtolds.
The process for long-term residents in good standing to gain legal status currently requires them to live here for 50 years.
Kerwin and Warren are calling for reducing that qualification to 15 years of U.S. residency. That would cover 42% of the undocumented population, Kerwin said.
“We recommend streamlining the naturalization process, making it a priority,” he said during the January webinar. “We support more generous eligibility criteria — waivers of language and civics requirements for people who have been here for 15 years. We need to prioritize education, English language proficiency and earnings to increase naturalization rates.”
This year could bring some changes. The legality of the Deferred Action for Childhood Arrivals, or DACA policy, which protects undocumented children from deportation and allows them work permits, is in limbo and expected to go to the U.S. Supreme Court for a decision.
Title 42, a federal provision invoked during the pandemic to restrict the number of foreigners entering the country, also could be removed — the possibility of which last year brought throngs of people from numerous countries trying to gain entry to America.
Monthly migrant “encounters” at the southwest border — which include apprehensions by U.S. Border Patrol that result in temporary custody until adjudication and expulsions back to home countries — are near record high levels, according to U.S. Customs and Border Protection.
In 2022, 2.4 million enforcement encounters at the Mexico border were recorded, compared with 1.7 million in 2021 and 458,000 in 2020, the agency reports.
More than 700,000 encounters have been logged to date for 2023.
Under immigration law, it is a misdemeanor offense subject to fine or six-month imprisonment for anyone entering the United States illegally. And it’s a felony offense for anyone to reenter or attempt to reenter the U.S. after being removed or deported.
Congress has not revised immigration laws comprehensively since the Immigration Act of 1990, a national reform of the Immigration and Nationality Act of 1965.
The Berchtolds note that they pay taxes and Social Security.
“We have to do everything like an American,” Michael said.
But they personally cannot receive any Social Security payments from the federal government because they don’t have green cards.
The unhappiness on their faces comes from deep within. If they do not receive green cards before they leave the restaurant business, they will have to leave America.
Many of Uwe’s German Restaurant regulars know about their plight.
A few years ago, nearly 2,000 customers signed a petition calling for the Berchtolds to obtain permanent residency, which a proposed bill in Congress would have addressed.
The couple submitted the petition to U.S. Rep. Doug Lamborn, a Republican from Colorado Springs.
“He said he would support it,” Sabine said.
But then impeachment proceedings for former President Donald Trump began and COVID-19 hit, and progress on the proposal halted.
“I feel so bad for them,” said Ralph Huber, who has been a patron of Uwe’s restaurant for years. “People are crossing the border by the millions, and here we have these people who have been here legally for a long time and can’t become citizens. It’s not right.”