March 2013 | Download PDF here.
A majority of Americans agree that Congress should pass an immigration law with a path to citizenship for immigrants here without papers. For this proposal to succeed, it has to be as inclusive and accessible as possible. Following are some of the key details that will determine how inclusive—and, ultimately, successful—this new program will be.
If we want to resolve the status of the undocumented population, we need to make it possible for all 11 million immigrants who qualify to actually apply.
To obtain immigration status under a program like this, immigrants typically have to prove that they were in the United States as of a certain date. Any “physical presence” requirement in this new program should be recent, to cover the vast majority of undocumented immigrants. As the Immigration Policy Center wrote, “If one of the objectives of legalization is to minimize illegal immigration, any program that leaves a sizeable undocumented population in the U.S. will fail.” In the Immigration Reform and Control Act of 1986, the cutoff date for most immigrants was January 1st, 1982; this excluded 600,000 immigrants who had entered since then. By contrast, the Obama Administration’s draft bill sets the “cutoff” as the date of the bill’s introduction, covering the greatest number of undocumented immigrants.
Immigrants applying for legalization should be judged on the totality of their contributions to the economy and their communities, not a rigid and arbitrary requirement to show a specific set of documents. Elderly individuals who no longer work, homemakers, day laborers, and domestic workers and others who cannot meet unrealistic work-documentation requirements should not be excluded. As Ai-Jen Poo of the National Domestic Workers Alliance wrote in the New York Times, “No one responsible for caring for the most precious elements of our lives — our homes and our families — should be at risk of being torn apart as a result of our immigration policies.”
Because success of the program is directly related to the number of people who can access it, application costs for immigration status and eventual citizenship must be affordable. Immigration applications are self-funded—i.e. all costs are paid by the applicant, without government subsidy. Currently, it costs an immigrant living in the U.S. $1,070 to apply for a green card, and another $595 for a green-card holder to apply for citizenship.
These costs are already high for individuals with limited incomes. In 2010, NCLR found that 43% of all immigrants who attended naturalization workshops but delayed applying did so because of cost, and informal reports from organizers of DACA workshops indicate that the most common reason DREAMers have not yet applied for DACA is that they cannot afford the application fees. The new reform law should not impose expensive fines and additional fees that would make it impossible for eligible immigrants to earn legal status. As IPC notes, “it is important to develop an affordable cost structure that encourages individuals to come forward rather than deterring participation.”
Some draft proposals have also required undocumented immigrants to achieve proficiency in English before they can obtain work permits or green cards. Currently, English language proficiency is a requirement for naturalization, not permanent residency (green cards), and this should remain the case. Although immigrants do want to learn English, this cannot happen overnight. As the Migration Policy Institute found, requiring immigrants to be speak English on the level of the naturalization exam before they even obtain a green card could exclude 3.6 million to 5.8 million immigrants—up to half the undocumented population. The new reform law should not require immigrants to meet an unrealistic proficiency standard before they obtain permanent residency.
Finally, applicants must be able to trust that their information will be kept confidential. When the federal government was setting up the DACA program last summer, one of its first statements clarified that information included on applications would be confidential—i.e. that they would not be used to deport applicants’ families (except in extreme cases like national-security concerns). As noted in a 2004 CLINIC report analyzing this situation in past programs, “Without this guarantee, few immigrants will come forward.”
Undocumented Americans should not be excluded for having been undocumented in America.
Years of inaction on immigration reform in Congress has led to the situation we are in today. Some undocumented residents have come into contact with immigration enforcement agencies in the past, and have been ordered deported. They are still undocumented Americans, with families, jobs, and ties to the United States, equally deserving of a chance to become legal residents. Individuals who have been ordered deported in the past or have other immigration violations should not be treated differently than other immigrants. In fact, many long-term U.S. residents with deep ties to the United States would be excluded if such bars were put in place. The Obama Administration’s draft bill ensures that these individuals can apply for legal residency and eventual citizenship.
Furthermore, we know that, in the months (and possibly years) that it will take the government to put the new program in place after Congress enacts immigration reform, it is highly likely that immigration enforcement will continue at its current record-high levels. Immigrants who qualify for legal status in the new program, but are caught up in the enforcement machine before it is implemented, should be able to make a prima facie case for eligibility. They would have a chance to apply for status when the program is ready, rather than being taken away from their families and homes due to a bureaucratic timeline that is out of their control. The Obama Administration’s draft bill puts measures in place to make the sure legalization is fair and open to individuals in this situation as well.
If the goal is to turn undocumented immigrants into documented immigrants, the law should not exclude people for doing what they needed to do to survive. While it’s clear that any legalization process will include a background check for applicants, individuals should not be excluded for minor crimes. If immigrants had papers, they wouldn’t need to use false documents or drive a car without a license. They wouldn’t have reason to fear the police.
Since the 1996 immigration laws went into effect, the types of crimes that make one ineligible for immigration status has grown tremendously. Even long-term legal residents with families in the U.S. now face deportation for minor and non-violent charges. The new legalization program should not add more restrictions to these already extreme criminal bars. In fact, the reform law Congress passes this year should restore humanity to the entire system, so that minor mistakes no longer equal automatic banishment for immigrants with roots in the United States.
Reform must not prevent immigrants from being able to come out of the shadows simply because they were in the shadows to begin with.
For More Information
Immigration Policy Center, “Earned Legalization: Repairing Our Broken Immigration System”
Immigration Policy Center, “The Dividends Of Citizenship: Why Legalization Must Lead To Citizenship”