Peter Schey pschey@centerforhumanrights.org, ~ May 1, 2016
Bill Clinton dealt a major setback to rational immigration policy in 1996 when he signed the Illegal Immigration Reform and Immigrant Responsibility Act for the first time in history adopting "bars" that would block millions of immigrants from legalizing their status even though they qualified for immigrant visas through their U.S. citizen or lawful resident spouses, parents or children.
This law now accounts for about two million undocumented immigrants living in the U.S. with Government-issued "approved" visa petitions, but unable to legalize their status. Hillary Clinton could endorse an easy solution to legalize these immigrants with no change in existing law.
In 1996 President Clinton signed into law several new bars to legalization for those previously eligible to get permanent resident status. One of the bars states that any immigrant who entered the country without inspection and has been present without lawful status for twelve months or longer faces a ten-year bar. These immigrants must go home for ten years before they can get a green card.
Since 1996, millions of immigrants who entered the country without inspection became eligible for permanent resident status through marriages to U.S. citizens or their U.S. citizen parents or other close family members.
Their family members applied for family-based visas and the Government approved these petitions. By entering the visa system, these immigrants have played by the rules. DHS knows exactly who they are, where they live and when and where they were born.
From time to time these immigrants travel to their home countries to visit family or for other legitimate reasons. Under long-standing Government policy, a small number are given permission to leave the U.S. and return with inspection if they can document a family emergency such as the death of an immediate family member. They are given "advance parole" -- authorization to travel so that the Government knows when they leave and when they return.
The vast majority of immigrants with approved visa petitions do not qualify for advance parole because they don't have a dire family emergency in their home countries. They just want to visit family or travel for other lawful purposes. They depart and return without inspection, diverting the limited resources of the U.S. Border Patrol.
The 1996 rule not only encourages unlawful reentries after immigrants briefly visit their countries of birth, it has caused the undocumented population to mushroom in size because remaining with their families is more important to the vast majority of immigrants than going home for ten years to get a green card. Family values trump administrative visa rules. Every year since 1996 the Government has approved thousands of visas for immigrants who cannot legalize their status because they face the ten-year bar.
Hillary Clinton, or whoever wins the White House, can direct the Department of Homeland Security to allow immigrants with approved visa petitions to travel to visit their families or for any other lawful purposes. This would be smart border enforcement as no one benefits when these immigrants travel and return illegally. The Government should want to know when immigrants in its system are leaving and returning to the country.
By allowing these immigrants to briefly travel abroad and be inspected upon return, they become eligible to adjust their status in the U.S. because now their most recent entry was with inspection. Many of these immigrants could become lawful residents within months after returning from brief trips with inspection.
The benefits to the country are clear. We would quickly and without cost reduce the undocumented population by ten to twenty percent. We would allow those with by far the greatest equities to emerge from the underground and integrate into the fabric of their communities. These immigrants would start working legally instead of illegally.
This policy would also show that immigrant families matter. The 1996 bars President Clinton signed serve as a visa death penalty for immigrants whose only offense years ago was to flee violence or crushing poverty in order to secure their safety or provide for their families.
Hillary Clinton should commit that if elected she'll allow immigrants with approved visa petitions to briefly travel and return with inspection. This would be smart border enforcement and a blessing to a couple of million families now living in fear that any day their parents, spouses or children may be detected and deported because of a law her husband signed twenty years ago not appreciating either the role it would play in expanding the undocumented population or the long-term suffering it would cause.
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Peter Schey is President of the Center for Human Rights and Constitutional Law, Los Angeles, CA. Class Counsel in several federal class action cases involving the legalization of immigrants; assisted Congress in drafting bi-partisan legalization laws enacted in 1986 (IRCA) and 2000 (LIFE Act).
