Explainer: Why can’t immigrants here illegally just apply for citizenship?
by Foster LLP, on News
By Lomi Kriel, Houston Chronicle
Why can’t immigrants here illegally just apply for citizenship? Or get in line and “do it the right way?”
As an immigration reporter for the Houston Chronicle, I hear that question almost every day. Why not go to the nearest federal building, fill out some paperwork and pay the fee? How hard can that be?
It’s a question worth considering now, as President Donald Trump gives his State of the Union address. He will almost certainly raise the issue of young immigrants who stand to lose their work permits in March unless Congress acts.
THE SHORT ANSWER: Of the roughly 11 million immigrants in the country illegally, around two-thirds have been here for more than a decade. Many don’t have any path to citizenship precisely because they have been here unlawfully, even if it was only for a few months.
By statute, they cannot apply for a green card within the U.S. — even if they otherwise qualify (And that’s hard. See more below.)
But if they leave, they might not be able to come back because of laws that penalize those who were here illegally. Even if they marry a U.S. citizen, one of the fastest and surest paths to citizenship, they could have to spend up to 10 years outside the United States.
Just look at the case of Jose Escobar, who had a temporary protected status for some Salvadorans that he lost through his mother’s paperwork error when he was just a teen. Though he married an American citizen, had two children, and otherwise committed no crimes in nearly two decades of his American life, he was deported early last year.
Dreamers, the 700,000 young immigrants who have temporary work permits under an Obama-era program called Deferred Action for Childhood Arrivals, don’t have a permanent legal status. They hold a provisional permission to work and protection from deportation under a legal concept known as deferred action that was first widely used in an argument over whether Beatles front-man John Lennon could stay in the country despite having a drug conviction.
Some Republicans thought that program was an executive overreach by Obama, and Trump rescinded it in September giving Congress until March before those youth will begin losing their temporary lawful status, meaning they won’t be able to legally work and could be deported.
QUESTION: Why didn’t the illegal immigrant population in the United States “get in line” before breaking the law and coming here without permission to begin with?
The short answer is: There is no real line.
My great-grandfather stood in line at Ellis Island. Did something change?
Until the late 19th century, there were no real immigration laws, so there weren’t any to break. People did not have to obtain visas at U.S. consulates before entering the country, and so simply arrived at ports of entry, like Ellis Island, where they were inspected and the vast majority allowed into the country. It wasn’t until the 1920s that Congress set numerical caps on immigration, and began tightening restrictions on who could come here.
The Immigration and Naturalization Act of 1965 reformed a previous quota system that was based on national origin, and is the basis of today’s framework.
So how is it possible now to come here legally?
Today there are three main ways to do that: through work, family, or refugee protection.
To come here for work, you must have a job lined up with a company that will sponsor you for the appropriate visa. An employer can request to bring in specific qualified foreign workers if they meet the requirements and no American could take the job instead.
Most employment visas are available only for highly-skilled technical professions, but there are some for people of extraordinary ability such as scientists, and even a category for models. (First Lady Melania Trump came here on a tourist visa, and later received a work visa for models.) There are also temporary visas for agricultural work and “less skilled workers.”
The overall limit for permanent employment visas each year is 140,000 — a number that includes the employees, their spouses and their children.
It’s difficult to get such work visas. In the H-1B professional work visa category, for instance, the government receives about 200,000 applications every year for only 85,000 available visas. Applicants are entered into a lottery system.
But even if you are lucky enough to get a visa, you can’t march downtown and ask for citizenship. Your company must first sponsor you for a green card. And if you are authorized, it doesn’t mean you will immediately get it.
Congress imposed caps on each country’s employment-based green cards, so if you are from a nation such as India that sends a lot of qualified immigrants to the United States, you might have to wait two decades before you receive one — even if you have been approved.
Look at the case of two Indian doctors who were nearly deported last year: They had been here legally since 2002 on student visas, then in 2008 the Houston Methodist Hospital System sponsored them for permanent residency.
But because of such country caps and a tremendous backlog in the overwhelmed system, the doctors were provided a provisional status until their green cards become available. The category for India is currently so behind that only immigrants who applied for the labor certification before June 2008 are receiving their green cards.
They renewed their temporary work authorizations and their travel documents every two years as required — then a trivial paperwork error almost caused them to lose their lives here.
Once you (finally!) receive a green card, you must “continuously” live in the country for five years and commit no crime or offense of “moral turpitude” for five years. Only then can you finally apply for citizenship.
What about if you have family here?
Some Republicans and groups seeking to reduce immigration argue far too many people are coming here through so-called “chain migration.” They want to end it.
There are 480,000 family migration visas available every year.
American citizens can petition for their spouses, parents, and children younger than 21. There are no caps on this category.
They can also sponsor their adult children and siblings, and green card holders can do so for spouses and unmarried children, but here there are quotas. Limits on the number of immigrants who receive green cards each year in these categories mean some can wait years, if not decades, before they receive this permission.
Consider the case of Karla Pérez, a 25-year-old law student at the University of Houston who will graduate in May. The family has been waiting more than 20 years to receive green cards through Pérez’s grandfather, an American citizen.
But just more than 23,400 are available in this category every year, and for Mexico, the wait time is about 22 years. Because Pérez is now older than 21, she is no longer eligible for residency through her grandfather.
OK, so what about refugee status?
Each year the United States sets a numerical limit on how many refugees will be admitted for humanitarian reasons. This year, the Trump administration capped it at 45,000, compared to 110,000 initially set under President Barack Obama for 2017.
It’s not that easy to become a refugee.
The United Nations recommends a certain number of people every year, and they are screened by multiple international and U.S. agencies and must prove that they have a “well-founded fear of persecution based on race, religion, membership in a particular social group, political opinion, or national origin.”
Asylum seekers are people already in the United States who can show they fear returning to their home countries because of such refugee persecution, and not simply because they want to escape poverty and violence.
It is true that thousands of migrants cross the southern border and pass the initial test for asylum, proving they have a credible fear of return, and then wait years before their cases come up before judges as a result of the nation’s critically backlogged immigration courts. Some never show up for their court dates and disappear into daily American life.
The Trump administration wants to change that, and has promised to end the practice of so-called “catch and release.”
But there is concern that it will erode protections for asylum-seekers and violate international treaties holding that countries shouldn’t penalize potential refugees.
Already the administration is separating parents and children at the border so that officials can criminally prosecute the adults and detain them until they are deported. That allows the government to bypass a 20-year-old federal settlement ruling that migrant children cannot be locked up for long and should be kept with their parents if possible.
In the case of Blanca Vasquez, she had no idea what the government did with her child for weeks.
Now, what about those young immigrants in the country illegally?
Polls show that most Americans, in some cases more than 80 percent, support allowing those who came here illegally as children to remain if they meet certain requirements, such as working or going to school.
QUESTION: So why is the issue so difficult for Congress to solve?
One reason is that since 2001, both Democrats and Republicans have been using so-called dreamers as political pawns to push changes to the larger immigration system.
But another reason is that a core group of Republicans, who tend to be politically active and show up in force to vote in primary elections, are still furious about changes made to the immigration system under President Ronald Reagan in 1986.
“Every part of that bill has been violated by our federal government and some state governments. They have never honored what they are supposed to do,” said Larry Korkmas, the Houston-based president of Texans for Immigration Reduction and Enforcement. “We cannot trust anyone in this particular situation. When we can, then we might be able to do something” for young immigrants.
Ira Mehlman, a spokesman for the Federation for American Immigration Reform, a powerful national group pushing to reduce immigration, said in an email that the 1986 bill gave zero to Americans who wanted a solution to illegal immigration.
“While (that legislation) delivered amnesty to about 3 million illegal aliens, it delivered nothing to the American people,” he said. “No border security, no meaningful employer sanctions or anything else to deter future illegal immigration.”
The 1986 Immigration Reform and Control Act allowed for the legalization of nearly 3 million people, but its promises on border enforcement and sanctions on employers who hired workers here illegally never fully materialized, according to a 2014 analysis by the Migration Policy Institute, a think tank in Washington D.C.
The legislation penalized employers who “knowingly” hired workers here illegally, but didn’t require them to verify the authenticity of identification documents, spurring a flourishing business in fraudulent documents.
Employers, particularly those in the construction industry, protected themselves from sanctions by turning to middle-men who hired workers here illegally as independent contractors. A 2013 report by the Workers Defense Project in Austin estimated that half of all construction workers in Texas lack legal status.
Nationally, the Bureau of Labor Statistics counts about 2.7 million temporary workers, but industry sources estimate as many as 15 million workers are hired annually as contract employees, according to the Migration Policy Institute’s analysis.
“A major driver of the growth of this practice has unmistakably been to shield the ultimate employer from responsibility for the subcontractors’ employment practices, including the hiring of unauthorized workers,” the report notes.
The 1986 act also authorized greater enforcement on the southern border, but that didn’t fully materialize until years later. By 1996, border control spending had doubled to $1.5 billion from 1986, but in that decade the number of immigrants here illegally is estimated to have doubled as well to about 6 million.
Border spending skyrocketed after the 2001 terrorist attacks, however, and funding for Customs and Border Protection and Immigration and Customs Enforcement alone stood at $19.3 billion in 2016, according to federal statistics.
Is the number of immigrants here illegally growing?
No. In fact, the number of immigrants here illegally has declined from its peak in 2007 and appears to have stabilized.
Historically the overwhelming majority of immigrants here illegally have come from Mexico. Since the recession, Mexicans leaving the U.S. have outnumbered those who come here.
The number of Mexicans living here illegally shrunk from 6.4 million in 2009 to 5.6 million in 2016, according to the Pew Research Center, a think tank in Washington D.C. Researchers point at Mexico’s growing economy and declining birth rates as well as increased border enforcement.
Arrests of people trying to cross illegally into the U.S. from Mexico are now at their lowest level since 1971, according to the Department of Homeland Security. Border officers apprehended 310,531 people for crossing into the country illegally in 2017. Apprehensions peaked at 1.7 million in 2000, and have mostly been on the decline since then.
Meanwhile the 1986 act legalized about 2.7 million people.
As a result their wages increased by as much as 15 percent in five years while their educational attainment and home-ownership levels also rose, according to the Migration Policy Institute.
But its report notes another lesson from those reforms: that legalization must be as “inclusive and as simple as possible,” important to consider as Congress debates for whom and how many to grant a type of authorization, if at all.
The 1986 bill created a 1982 cutoff date for eligibility — five years before the beginning of the program — and so excluded about half of the unauthorized population, “leaving the goal of wiping the illegal immigration slate clean well short of reality,” according to the report. Those who remained without status became the nucleus of today’s population of immigrants here illegally.
The act also left out a large number of immediate family members, creating such a dilemma that in 1990 Congress passed another immigration act amending the system. As a result, it expanded the number of family immigration visas allotted per year and created the diversity visa lottery — both programs Trump and his supporters now want to reduce or cut.
What neither legislation did was provide a substantial temporary worker program, said Charles Foster, a Houston immigration attorney who advised President George W. Bush on the issue.
“Before, temporary workers would enter without documents and work within a hundred miles or so of the border, go home for the holidays and keep their families,” he said. “Once enforcement kicked in, it became safer and wiser for them just to stay permanently in the U.S. and to smuggle their families into the U.S. to join them on a one time basis.”
The 1990 reforms occurred under Republican President George H. W. Bush. Together, he and Reagan created one of the biggest legalization programs for unauthorized immigrants in history. Every president since has failed to push major changes through Congress.
Now we will wait to see what Trump does.