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Immigration 101: Why Can’t Immigrants Just “Get Legal”, “Get in Line” and Get Their Papers?

 

Here’s a basic question we often come across: why can’t undocumented immigrants just “get in line”, “get legal”, “get right with the law” — i.e. obtain the legalization and citizenship that would allow them to become full-fledged Americans and protect them from deportation?

The short answer is: they can’t.

One misconception about undocumented immigration is that obtaining legal papers is as simple as, say, changing your address at the post office, and that immigrants remain undocumented due to a lack of trying. But nothing could be further from the truth.

In fact, there are millions of immigrants who have lived in the US for decades, who have worked hard and paid taxes and bought homes, who have US-citizen children, who make valuable community contributions — who have been deported, and forcibly separated from their whole lives in America, because they weren’t able to “get legal”. Many of them have spent years and tens of thousands or more in legal fees trying to find pathways to legalization and citizenship for themselves. If there were a way to “get right with the law”, they would have done it. There isn’t.

As immigration attorney David Leopold wrote at Medium recently:

Immigration law generally requires that for an immigrant to adjust or change status to temporary worker or green card holder, he or she must have lawfully entered the United States…immigrants who entered the country without inspection — even as young children — generally cannot apply for a green card [while] inside the United States under any circumstances, including if they marry a U.S. citizen.

The question of why immigrants come to the US without papers, from a logistical standpoint, boils down to two things: the fact that there’s no “line” for the vast majority of people around the world to get into, and the fact that there’s no way to correct undocumented status.

Why don’t immigrants just get in line? There is no line

As the American Immigration Council explained, there is no single “line” for would-be immigrants to come into the United States. People can visit, of course, using tourist or student visas. But immigration, the process that leads to a green card, legal permanent residency, and/or American citizenship, is not an option for the vast majority of people living around the world.

Generally speaking, there are only three paths through which people can immigrate*:

Employer-based immigration

For an employer to sponsor a foreign worker to come to the US, the worker must generally have a job lined up with an eligible employer who will sponsor them. This typically requires advanced skills and longtime professional experience, and is used to bring in scientists, professors, and multinational executives. This type of visa can only be used for a limited number of foreign workers, and the worker must stay with the employer who sponsored them — which has led to many reports of exploitation and abuse by employers. There are also temporary, seasonal visas for agricultural workers — but there are also very limited in number, onerous to obtain, and costly for employers.

Family-based immigration

US citizens can petition for their spouses, parents, children, and siblings to join them in the United States. (Legal permanent residents can petition for spouses and unmarried children.) But there are lines for each of these. According to the American Immigration Council, the unmarried children of US citizens must wait more than 5 years to be able to come to the US, while siblings of US citizens must wait more than ten years. The website continues:

People from countries with high levels of immigration to the United States–Mexico, China, India, and the Philippines — generally have longer waiting times. For example, married children of US citizens from Mexico must wait more than 20 years for a visa to become available, and Filipino siblings of US citizens currently wait about 25 years.

And if a person seeking to immigrate does not have a close family tie in the US in the first place, they are ineligible for this route.

Asylum

Each year, the US sets a limit on how many refugees will be admitted for humanitarian reasons. This year, the cap was a mere 50,000, and was reached in June. To be admitted as refugees, individuals must be screened by multiple international and U.S. agencies and prove that they have a “well-founded fear of persecution” in their home country “based on race, religion, membership in a particular social group, political opinion, or national origin.” An immigrant does not qualify as a refugee or an asylee because of poverty or difficult economic conditions in their home country. This is also a very difficult path to entry — untold numbers of immigrants have been deported because they came to the US seeking asylum and had their cases denied, in many cases because it is almost impossible to prove that one’s life is in direct danger. Furthermore, the Trump Administration is now reportedly turning away asylum applicants at the border, in violation of international law.

Why can’t immigrants already in the US “get legal”? There’s no way

All of the above explains why would-be immigrants to the US generally have no legal way to come. For undocumented immigrants already in the US, the situation is not much different. Even in the many, many cases where undocumented immigrants have been in the US for decades, married, had US citizen children, worked and paid taxes, started businesses and bought homes, there is no way to obtain legal status.

An undocumented person already in the US could be sponsored by a US-citizen child — but the child must first be 21 years of age or older, and the undocumented parent would still have to get into the long family-based immigration lines mentioned above, resulting in a wait of 20 years or longer.

A person could marry a US citizen, but this does not necessarily lead to legal status either. As we explained here, an undocumented person who seeks legalization by marriage must leave the US first and return to their country of origin. But once they identify themselves as undocumented and leave, they trigger a ban — that can last up to 10 years — during which they cannot reenter the country. There are ways around this ban, but only for a select group of people.

Immigration and Jesus Lara Lopez

To underscore everything we’ve talked about in this article, let’s talk about Jesus Lara Lopez, an Ohio father of four who was deported and separated from his family last week. Jesus came to the US from Mexico 16 years ago and was discovered to be undocumented when officials caught him driving without a license. As a Mexican national, there was no way — zero — for Jesus to come to the US legally. He would not have been sponsored by an employer, he didn’t have immediate family in the US who could sponsor him, and Mexican nationals generally do not qualify for asylum.

Once Jesus made it to the US, there was no way for him to obtain legal status. None of his children are over the age of 21, and so would not be able to sponsor him. Jesus’ wife is undocumented, but even if he had been married to a US citizen, this likely would not have been a path to legal status for him. To gain legal status through a US citizen wife, Jesus would have likely had to leave the country for ten years before being able to return. At no point in his immigration history have the doors of US legal status been open to someone like Jesus.

In short, it is very difficult for people outside of the US to immigrate here, and impossible for most undocumented immigrants already in the US to become documented. As David Leopold wrote:

The outdated, rigid, and poorly structured immigration law makes it nearly impossible for most undocumented immigrants to fix their status in the United States. This is true regardless of whether a person arrived in the country on a lawful visa and later fell out of status, or whether they entered the country without lawful inspection by US. immigration officers. That’s because once someone enters the country illegally or overstays their visa, the law prohibits them from applying for legal immigration status from inside the United States. Of course, there are important exceptions to this for victims of crime, persecution, human trafficking, and domestic violence. But for most undocumented immigrants, these outdated and rigid immigration laws offer few options and little forgiveness.

For a visualization of what the US immigration system is like today — and how hard it can be to get admitted — visit Bend the Arc’s website at EntryDenied.org.


* There are few other very limited channels, such as the diversity lottery; please read about them at the American Immigration Council.