Harsh immigration penalties put into effect approximately fifteen
years ago impose a 10 year bar on anyone “unlawfully present’
in the US for more than 365 days. This law perhaps, more than
any other, has resulted in a significant increase in the number
of undocumented immigrants in the US. The reason is that
the penalty or “bar” to re-entry is triggered by the immigrant’s
departure, essentially penalizing them for leaving the US.
While the US border has been increasingly secured over the
same period, reducing the flow of undocumented workers to
the US, this 10 year bar has trapped millions of undocumented
immigrants with families south of the border who might otherwise
have gone home. Many of these workers perform low skilled jobs
that Americans won’t perform even during this period of high
unemployment. They are essentially trapped here because if they
leave they cannot return for 10 years.
A substantial number of those trapped here are married to US
citizens and have US citizen children, or are children brought to
the US without papers as minors by their parents. Most Americans
think that marriage to a U.S. citizen automatically qualifies an
individual for a green card, but it doesn’t! Since 2001, anyone
who entered the US without authorization who does not have a
grandfathered petition (one filed prior to 4/30/2001) must return
to their home country to be processed for their green card. Those
who do, trigger the 10 year bar, which can only be overcome by
seeking a special waiver which is extraordinarily difficult to obtain.
Consequently, most do not take the risk and remain here unable to
legalize their status. As a result hundreds of thousands of American
families live in a state of limbo, in a state of fear, with their primary
member, often the family’s bread winner, living in the shadows as
an undocumented alien.
Prior to 4/30/2001, a law existed that enabled such individuals
to pay a $1,000 fine or penalty and avoid leaving the US and
thus triggering the bar on re-entry. Prior to 9/11 both Houses
of Congress had agreed to extend this law. Unfortunately 9/11
occurred and the extension died in Congress. Since that time
immigrants, undocumented and even legal immigrants, have been
viewed with suspicion, derision, and have become scapegoats for a
variety of America’s ills.
As such, at the moment, there appears to be no political will to
rectify this situation and provide those in limbo with a pathway
to legalization. In fact, the Senate earlier this year fell short of
the votes needed to pass the “Dream Act” which would have
extended immigration benefits to the blameless children of the
undocumented who were brought to the country when they were
minors in exchange for their military service or commitment
to attend college. In the meantime, Spouses of US citizens and
grown children, many of whom are exceptionally bright and have
excelled in school are forced to remain in the shadows, scrape
by performing whatever jobs they are able to obtaining without
papers, avoid interaction with government officials, and pray for
the day when Congress will consider their plight.