Need for Reform: Keeping Families Together

As I previously explained, President Obama's announcement that he will take executive action, which will result in undocumented immigrants obtaining work authorization will not permanently fix the immigration system.  One of the aims of the president's announcement is to keep families together.  This is certainly an important goal, however, our current immigration laws do little to reach this goal in a reasonable amount of time.

For instance, foreign nationals (immigrants) who marry US citizens are not immediately eligible to come to the US with green cards, as the general public may believe.   In fact, if the marriage takes place abroad, the foreign national must wait outside of the US before getting his green card, in a process that can take up to one year (or more)!   There is a fiance visa, which some apply for, but that process can take approximately 6 months before an immigrant fiance can enter the US.  Even then, the couple must marry within 90 days before the immigrant can apply for his green card, which process can take another 6-10 months depending on where the couple lives.  

Marrying a US citizen while in the US is not an immediate guarantee that a foreign national's green card will be issued immediately either.   For instance, if an immigrant entered the US as a tourist, but immediately gets married and files for his green card, the Immigration Service can charge him with fraud (since he entered the US stating that his intentions were to travel and return home, he committed fraud by lying to the officer, getting married, and filing a green card application). Alternatively, if an immigrant entered without going through the inspection process (crossed the border), she is not eligible to apply for her green card in the US.   Certainly there are exceptions to these rules, but this is the general law for foreign spouses of US citizens.

The rules become even more complex, and wait times longer when the familial relationship involves parents of US citizens and spouses of green card holders.  For example, if a US citizen's parents live abroad, in Canada for example, the US citizen can file an application for his mother and father to become green card holders.  The wait time is the same as for spouse of US citizens (approximately one year).  If the same US citizen has a sibling in Canada who is a minor and cannot be without her parents, the US citizen cannot immediately sponsor his sibling, and the parents have to find a way to come live in the US, while simultaneously caring for their younger child.  Only when the parents become green card holders can they file an application for their younger child.  That application can take up to two years, or more to process, and the child cannot live in the US during that time without valid status (a valid visa).

Similarly, if a green card holder wishes to file an application for his spouse, the spouse must either have a valid visa (valid status), or wait outside of the US while the application is processing.  These applications can also take two years or more to process.

The above examples are for simple relationships, spouses and parents of US citizens, and spouses of green card holders.  However, there is no "simple" way for these families to be together immediately.  The process is long, arduous and often frustrating.  If our country's goal is to keep families together, certainly we can simplify this system through meaningful reforms.

President Obama's Executive Action: Amnesty vs. Deferred Action

In the wake of President Obama's announcement last night to extend deferred action initiatives to undocumented immigrants, it is important to understand that such action is not amnesty, nor does it grant legal status to undocumented immigrants as suggested by various media outlets.

The term "amnesty" means a pardon or forgiveness.  Past immigration amnesties were pardons, forgiving undocumented immigrants who were in the United States, providing them a pathway to become green card holders first, and eventually US Citizens.

Deferred action is not a pardon or forgiveness.  In fact, it does not provide a pathway to obtain permanent resident status (green card) or US Citizenship.  Simply put, in this context, it is the government's decision not to place certain undocumented immigrants in immigration court, (deportation or removal proceedings).  It is an act of prosecutorial discretion.  While undocumented immigrants who qualify for this prosecutorial discretion will be eligible to apply for work authorization, they will not be entitled to other government benefits as they would be if they were granted amnesty.

Accordingly, stating that these undocumented immigrants who will benefit from President Obama's actions will be given legal status and be pardoned for their immigration violations is inaccurate.   They will merely be protected for a set period of time from deportation, with no clear path to obtain permanent legal status in the United States.

Defining "Illegal Immigrants"

As the discussion about immigration reform and presidential action continues, it is important to accurately classify the immigrants in the United States, and the benefits for which they may already qualify.  This is especially important for the media, which is reporting on the proposed changes to immigration law and policy.  For instance, The Wall Street Journal published an article recently discussing possible changes to immigration policy (http://online.wsj.com/articles/obama-may-cut-deportations-1414626089), using the term "illegal immigrant" to define the class of immigrants with no lawful status in the United States. 

Unfortunately, "illegal immigrant" has become a common term for someone who does not have the appropriate authorization to be in the United States, such that it leads to errors in reporting.  Specifically, articles often refer to “illegal immigrants” who would obtain some benefit from President Obama’s expected executive action on immigration.   In doing so, reports often fail to make critical distinctions regarding illegal immigrants, who are more appropriately called undocumented or unauthorized. 

There are two types of undocumented immigrants in the United States.  The first class is those who entered the United States legally, going through procedures with Customs and Border Protection, but have stayed in the United States beyond the time granted to them when they entered (generally referred to as an “overstay”).  The second class includes those individuals who entered the United States unlawfully, crossing borders, without being inspected by a Customs and Border Protection officer. 

This distinction is important for several reasons, most importantly, the class of undocumented immigrants who enter the US lawfully can generally become green card holders in the United States, barring other immigration or criminal violations, so long as they have an immediate relative (U.S. citizen spouse, parent, or child) who can file an application on their behalf.  Simply put, their immigration violation of overstaying is forgiven and in many cases these undocumented immigrants can immediately apply for a green card while in the United States.

For the class of unauthorized immigrants who crossed the border unlawfully, they cannot obtain legal status by marriage to a US citizen, or by a petition filed by a US parent or child, unless they return to their home country.  Previously, the regulations required that this class of undocumented immigrants wait for a significant time outside the US before returning, as they had to request forgiveness for their previous immigration violations (entering the US unlawfully and remaining here).

However, the Department of Homeland Security established regulations in 2012, which went into effect in the beginning of 2013 that allow undocumented immigrants who entered the US unlawfully, and marry a US citizen or have a US citizen parent to submit an application, an advanced waiver, so that they do not have to spend significant time waiting in their home country. This waiver is available to undocumented immigrants whose only immigration violation is remaining in the United States without lawful status, and who are married to US citizens or have US citizen parents.

Given the complexity of immigration law, and the debates that ensue when discussing the need for comprehensive reform or potential executive action, it is critical that the public understand some basics so we can move forward in finding a workable solution that benefits the United States.