Durch Tracey M. Hubbard Rentas, Rechtsanwalt

On April 7, 2011, the American Immigration Lawyers Association (AILA) had its annual National Day of Action.  As part of this National Day of Action, attorneys from AILA traveled down to Washington D.C. to speak with U.S. Senators and Congressmen on Capitol Hill about the possibility of immigration reform during this Congressional term.  Each AILA attorney joined with several other attorneys from their home state to meet with the federal legislators from that home state.  

For my first time ever, I attended this year’s National Day of Action.  I traveled to Washington D.C. to speak with our federal legislators.  During my day on Capitol Hill, I met with newly-elected Senator Toomey, as well as representatives from Senator Casey’s and Senator Coons (from Delaware) office.  I also met with U.S. Congressman Altmire and representatives from U.S. Congressman Tim Murphy and Thomas Marino’s office.

Regardless of whether a Republican or Democrat, the legislators agreed on three points.  First, there was agreement that the U.S. immigration system was broken and needed to be reformed.  Second, all were in agreement that enforcement only provisions would not solve this country’s immigration problems. Schließlich, there was agreement that the passage of immigration reform was unlikely during this Congressional term (2011 und 2012).

 Legislators from both parties did support increasing the number of employment visas so that more highly-specialized workers (H1-B) and agricultural workers (H2-B) could be legally hired by U.S. companies and farms.  Both parties acknowledged that a revision of the employment visa program was necessary in order to keep this country competitive in the global economy and fill the gaps in the American workforce with foreign workers. 

A general amnesty, similar to what was done by former President Ronald Reagan in 1987, is strongly opposed by Republicans and some Democrats.  While granting amnesty to 12 million undocumented immigrants will result in the legalized status of immigrants here, the fear is that it will also lead to a new stream of undocumented immigrants entering the U.S.  In short, a general amnesty bill will not pass in this political climate. 

Jedoch, legislators recognize that increasing enforcement efforts to try and deport 12 million undocumented immigrants is not a plausible solution either. The United States does not have the resources to deport 12 million undocumented immigrants. Even if the U.S. could deport the entire undocumented population, consider the realistic ability of the U.S. to keep deported, undocumented immigrants from returning.   

Republicans and Democrats understand that neither extreme position – granting general amnesty or deporting 12 million undocumented immigrants – will work.  The answer is in a compromise.  When we met with the legislators, our group proposed a two-step compromise.  The proposal was well-received by many of the legislators and their aides. 

Step one of the proposal addresses the argument that undocumented immigrants have violated U.S. federal laws.  This is true – undocumented immigrants present in the United States are in violation of our laws.  However, it is important to understand that the laws being violated are civil administrative laws, not criminal laws.  When civil laws are violated in this country, the punishment often is payment of monetary damages.  Thus, the first step of the proposal would be to fine undocumented immigrants, who are applying for status, for violating U.S. civil immigration laws.  A penalty of $1,000 was proposed.  Consider if five million undocumented immigrants could apply to legalize their status, the fines would generate over five billion dollars in revenue.  This money could help reduce the federal deficit or fund other programs.     

The second step of the compromise would require the removal of a little understood provision entitled “Unlawful Presence”, which was signed into law in 1996 as part of a wide-scale enforcement only immigration bill entitled IIRIRA.  Under the unlawful presence bar, undocumented immigrants who remained in the U.S. for one year or more were now unable to correct their immigration status in the United States.  Currently, if an undocumented immigrant leaves the U.S. (whether voluntarily or by deportation), he is banned from reentering the U.S. for ten years. 

When passed, many believed that the unlawful presence bar would discourage undocumented immigrants from coming to or remaining in the U.S.  In fact, this bar has trapped undocumented immigrants in the U.S.  Now many cannot apply for status in the U.S. nor can they travel home and fix their status in any reasonable period of time.  The end result of the unlawful presence bar is a substantial increase in the numbers of undocumented immigrants present in the U.S.  The unlawful presence bar dramatically changed the playing field by which prior generations obtain immigration status.

Prior to 1996, an undocumented immigrant could fix his status if he had a basis to apply for a visa.  The immigrant would leave the U.S., travel home to his home country and re-enter lawfully with immigration status.  For example, an undocumented Mexican present in the U.S. who married a U.S. citizen could return to Mexico and file the appropriate immigration paperwork with the U.S. consulate in Mexico.  If the immigrant had no (or very minor) criminal issues, was not likely to go on welfare, and was healthy, the Mexican immigrant was given his permanent residency and allowed to re-enter the U.S. and reunite with his U.S. citizen wife. 

The procedure prior to 1996 was a close cousin to the procedure for processing immigrants that arrived on Ellis Island without proper immigration papers.  In those cases, the proper immigration papers would be completed at Ellis Island, immigration physicals would be given and if the person was not a risk of being a public charge, the immigrant would be lawfully admitted to the United States. 

So, prior to 1996 many undocumented immigrants, whether newly arrived to the U.S. or present for many years, had a pathway to correct their immigration status in a straight-forward, workable way.  Today, the passage of the unlawful presence bar has closed the pathway for many undocumented immigrants to obtain lawful immigration status.

An amendment to U.S. immigration laws to provide for a civil fine as well as repealing the unlawful presence bar would reopen the pathway for many undocumented immigrants to obtain lawful immigration status.  It would further require that the immigrant pay a penalty for their errors and follow the rules to get their immigration status the “right” way.  This compromise does not completely fix our immigration system, but it is a compromise position that is workable in this political climate and would help millions of undocumented immigrants.