UNAUTHORIZED MIGRANTS & ADJUSTMENT OF STATUS: AN OLD SOLUTION FOR NEW MIGRANTS

UNAUTHORIZED MIGRANTS & ADJUSTMENT OF STATUS: AN OLD SOLUTION FOR NEW MIGRANTS By Alyssa N. Noronha 2012 Temple Law & Public Policy Scholar alyssa.no@gmail.com

INTRODUCTION ICE is out today. That s why there s not a big turnout. These words were uttered to me last year as I volunteered as a tax preparer on a particularly slow day at a Volunteer Income Tax Assistance clinic. We only had a few families stop in to have their taxes prepared, for free, that particular Saturday. Apparently, Immigration and Customs Enforcement, commonly known as ICE, had been out patrolling the area. Their presence had scared those residents who needed tax preparation assistance, and they remained inside their homes. Deportation was not a chance anyone wanted to take, especially to file taxes. Because of their undocumented nature, little is known about this sub-set of the American populace. What immigration lawyers and lawmakers may know, however, is that some of them may have been eligible to remain in the United States legally, if only they had been here eleven years ago. In general, there is a penalty for receiving a visa if a migrant 1 had unlawful status in the United States. In 2001, an undocumented migrant who had a visa readily available to him could apply for a special procedure to get that visa without a penalty. Applying for a visa under this law is no longer possible, as the law expired in early 2001. Today, if an undocumented migrant tries to obtain a visa outside the United States, he is subjected to a time bar to re-entry. This paper proposes an extension of the prior 2001 law to encourage more undocumented migrants to gain lawful status in the United States. On June 15, 2012, President Barack Obama announced a new policy for children and young adults who were brought to the United States illegally: the Administration would not 1 The term migrant is being used to substitute for the term alien in this paper. The Immigration and Nationality Code favors the use of the term alien, whereas the author prefers migrant to describe those moving to the United States. Accordingly, statutory references incorporate the term alien. However, the terms are used interchangeably in this paper. Noronha 1

actively seek their deportation 2. This announcement, coupled with the Obama Administration s record number of deportations, 3 has created a renewed focus on immigration policy in the United States. It is therefore a perfect time to examine another possible method of reforming immigration law. The Immigration and Nationality Act ( INA ) sets forth methods of applying for United States citizenship. 4 In most cases, a migrant will need to visit a consulate in his or her home country to receive an immigrant visa. The legal concept of adjustment of status permits a migrant to receive his or her immigrant visa in the United States, without having to make the trip to their home country. However, a migrant can be disqualified for adjustment of status if one of the reasons enumerated under INA 245(c) or INA 212(a) applies, notably, if the migrant is present in the United States unlawfully. Prior to April 30, 2001, if the migrant were disqualified, he or she could pay a fee to the federal government to adjust status through a relatively simple process. This procedure is no longer available. Currently, a disqualified migrant must now return to his or her home country to apply for the visa, but the migrant is then subject to re-entry bars that can prevent him or her from returning to the United States for three or ten years, depending on the length of unauthorized stay in the United States. To understand the problem fully, this paper will first discuss the background of the law, including the current law on this matter. Second, the paper will explain why change is 2 Remarks by the President on Immigration, THE WHITE HOUSE, OFFICE OF THE PRESS SECRETARY (June 15, 2012) available at: http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration; see also Julia Preston and John H. Cushman, Jr., Obama to Permit Young Migrants to Remain in U.S., THE NEW YORK TIMES (June 15, 2012), available at: http://www.nytimes.com/2012/06/16/us/us-to-stop-deporting-some-illegalimmigrants.html?pagewanted=all. 3 Peter Slevin, Deportation of illegal immigrants increases under Obama administration, THE WASHINGTON POST (July 26, 2010), available at: http://www.washingtonpost.com/wpdyn/content/article/2010/07/25/ar2010072501790.html. 4 The INA is codified at Title 8 of the United States Code. For purposes of clarity and consistency with immigration law practitioners, this policy proposal will refer to and cite the INA section numbers. This approach is also identified by U.S. Citizenship and Immigration Services (See Immigration and Nationality Act, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, http://www.uscis.gov/portal/site/uscis (follow Laws hyperlink; then follow Immigration and Nationality Act hyperlink) (last visited July 19, 2012)). Noronha 2

necessary. Lastly, the paper will propose a solution to the problem, namely, a call for Congress to eliminate the April 30, 2001, application date for INA 245(i). This date elimination can both raise revenue and encourage those who are here without authorization to gain lawful status in the United States. CURRENT LAW Legal Methods of Entry & Waiting for a Visa Under the INA, a migrant has three main legal methods of entering the United States: non-immigrant visas, immigrant visas, and refugee or asylum status. Refugees and asylumseekers are a special category of migrants who claim abuses in their country of origin. The other two methods, through the procurement of either a non-immigrant or immigrant visa, are the conventional methods to gain lawful entry to the United States. Non-immigrant visas are best described simply as temporary visas. These visas, enumerated in INA 101(a)(15) are known as the alphabet soup of visas, from A visas to V visas. They include student visas, agricultural temporary worker visas and the controversial H-1B visas. 5 When a migrant is admitted on a non-immigrant visa, that migrant generally cannot have an intention of abandoning his or her home country place of residence. 6 These visa holders are only supposed to remain in the United States for a specified period of time, after which there is an expectation that they will return home. On the contrary, many who are admitted to the United States on a non-immigrant visa end up remaining in the United States beyond the expiration of their temporary admission. For the purposes of this paper, these migrants, along 5 See INA 101(a)(15). 6 Id. Noronha 3

with those who entered the country without authorization, will be referred to as undocumented migrants. Immigrant visas allow a migrant to gain legal permanent resident (LPR) status. Until the immigrant has become a U.S. citizen, the immigrant is known as an LPR. The problem, of course, is that the number of immigrant visas is severely limited. Generally, an immigrant must be sponsored either by a family member or an employer. 7 Under INA 203, there are currently five different preferences for family-sponsored visas. The first preference is immediate relatives of U.S. citizens, which includes spouses, children and, if the petitioner is over age 21, parents are included. 8 This first preference is not subjected to a numerical limitation each year, 9 which makes it one of the easiest ways of obtaining an immigrant visa. The next four preferences, on the other hand, are all subject to numerical limitations. 10 Once that quota has been met for the year, no new visas under that preference may be issued. These additional preferences are as follows: The second preference is for unmarried sons and daughters of U.S. citizens. 11 The third preference is for spouses and unmarried sons and daughters of LPRs. 12 The fourth preference is for married sons and daughters of U.S. citizens. 13 The fifth preference is for brothers and sisters of U.S. citizens. 14 Lastly, another category considered to be in the family sponsored preference is a unique category called diversity immigrants. 15 These immigrants are given visas through a lottery system, where 7 INA 201(a)(1)-(2). 8 INA 201(b)(2)(A)(i)-(ii). 9 Id. 10 INA 201(a)(1). 11 INA 203(a)(1). 12 INA 203(a)(2). 13 INA 203(a)(3). 14 INA 203(a)(4). 15 INA 203(c). Noronha 4

if the alien s home country has a low number of immigrants, the alien may be awarded a visa through the lottery. 16 Similarly, there are five preferences for employer-sponsored visas. These categories include: 1) priority workers, 17 2) professionals holding advanced degrees, 18 3) professionals with baccalaureate degrees/skilled & unskilled workers, 19 4) special immigrants, 20 and 5) investors. 21 Unlike family-sponsored visas, many of these visas are subject to the process of labor certification. Labor certification begins with the U.S. Department of Labor. 22 The employer must prove that the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. 23 Once certified, the employer is able to move forward with the visa application process. Notably, not all employer-sponsored preferences require labor certification. For example, the first and second employment-based preferences are not subject to the labor certification process 24, but those who hold baccalaureate degrees, the third preference, must complete a labor certification process. 25 Each month, the U.S. Department of State issues a Visa Bulletin. 26 This bulletin lists the number of available visas for each preference. Additionally, the bulletin lists the dates of applications which are now eligible for visas. For example, employer-sponsored immigrants 16 Id. 17 INA 203(b)(1). 18 INA 203(b)(2). 19 INA 203(b)(3). 20 INA 203(b)(4). 21 INA 203(b)(5). 22 INA 212(a)(5)(A)(i). 23 INA 212(a)(5)(A)(i)(II). 24 See INA 203(b)(1)-(2). 25 INA 203(b)(3)(C). 26 Visa Bulletin, U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS, http://travel.state.gov/visa/bulletin/bulletin_1360.html (last visited August 16, 2012). Noronha 5

generally have a visa readily available to them. 27 On the other hand, many family-sponsored immigrants have significant wait periods of more than ten years. 28 This gap in visa availability shows that it is much easier to bring an employee to work in the United States than it is for a family member to bring a relative over to the United States with due speed. For both sets of visas, the migrant s home country usually must issue the visa. 29 This process is known as consular processing. 30 In other words, the migrant cannot obtain the visa in the United States, but must instead travel to her home country to obtain the immigrant visa. Generally, different fees and filing requirements accompany each type of immigrant visa type. Obtaining a visa through consular processing is usually not a problem for migrants but may cause a financial burden on those who are away from their home country. As discussed later, another serious problem with consular processing is that if certain people leave the United States, it will be extremely hard for them to come back to the United States quickly and legally. Adjustment of Status Alternatively, a migrant can apply for the visa in the United States. 31 This process is known as Adjustment of Status under INA 245(c). INA 245(c) allows a visa applicant to obtain the immigrant visa in the United States, rather than traveling to his home country. 32 The migrant is adjusting her status from a non-immigrant to an immigrant. The advantage of 27 Immigrant Numbers for July 2012, U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS, Vol. IX Visa Bulletin Number 46, http://travel.state.gov/pdf/visabulletin/visabulletin_july2012.pdf. 28 Id. 29 Consular Processing, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at: http://www.uscis.gov/greencard (follow Green Card Processes and Procedures hyperlink; follow Consular Processing hyperlink) (last visited July 26, 2012). 30 Id. 31 Adjustment of Status, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at: http://www.uscis.gov/greencard (follow Green Card Processes and Procedures hyperlink; follow Adjustment of Status hyperlink) (last visited July 26, 2012). 32 Id. Noronha 6

adjusting status is that a migrant already in the United States does not need to leave the country. Unfortunately, as explained below, only certain people qualify to adjust status. There are generally four steps to adjusting status. First, a migrant needs an immigrant visa category, such as a particular family or employer based preference, to apply. 33 Second, the immigrant petition must be filed on the migrant s behalf by the sponsoring individual or entity. 34 Third, the migrant can file form I-485 only if there is a visa immediately available. 35 This form is known as the Application to Register Permanent Residence or Adjust Status. 36 Its stated purpose is to apply to adjust your status to that of a permanent resident of the United States. The availability is determined in the State Department s Visa Bulletin, as described above. 37 Lastly, the migrant must be admissible to the United States and not specifically disqualified to adjust status under INA 245(c). Figure 1: Steps to Adjusting Status from Nonimmigrant to Immigrant Step 1: Need an immigrant visa category to apply (family, employer) Step 2: Have the immigrant petition filed on your behalf Step 3: File form I-485 only if there is a visa immediately available to you Step 4: Be admissible to the United States and not specifically disqualified under 245(c) 33 Id. 34 Id. 35 Id. 36 I-485, Application to Register Permanent Residence or Adjust Status, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at: http://www.uscis.gov/portal/site/uscis (follow FORMS hyperlink; follow Green Card-Based Forms hyperlink; follow Application to Register Permanent Residence or Adjust Status hyperlink) (last visited August 16, 2012). 37 Visa Availability and Priority Dates, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at: http://www.uscis.gov/greencard (follow Green Card Processes and Procedures hyperlink; follow Visa Availability & Priority Dates hyperlink) (last visited July 26, 2012). Noronha 7

Certain migrants are specifically disqualified from adjusting status under INA 245(c). These categories include: alien crewmen, 38 an alien who continues or accepts unauthorized employment, 39 an alien who is admitted in transit without a visa, 40 an alien who is admitted as a nonimmigrant visitor without a visa, 41 S visa holders, 42 an alien who is deportable for being involved in terrorist activities, 43 an alien who seeks adjustment of status and is not in a lawful nonimmigrant status 44 and an alien who is violating the terms of a nonimmigrant visa. 45 Inadmissibility is an immigration law term of art, meaning that the migrant is not eligible to enter the United States with permission. Inadmissibility grounds are listed in INA 212. Categories include: health/medical grounds, 46 criminal grounds, 47 security grounds, 48 public charge grounds, 49 those who fail to acquire labor certification when required, 50 immigration violators, 51 those who fail to present proper documentation at the time of admission, 52 those ineligible for citizenship, 53 and lastly, 54 aliens previously removed or unlawfully present in the United States. 55 This category, aliens unlawfully present, can cause particular problems for migrants because it subjects the migrant to significant bars to re-entering the United States. 38 INA 235(c)(1). 39 INA 235(c)(2). 40 INA 235(c)(3). 41 INA 235(c)(4). 42 INA 235(c)(5). 43 INA 235(c)(6). 44 INA 235(c)(7). 45 INA 235(c)(8). 46 INA 212(a)(1). 47 INA 212(a)(2). 48 INA 212(a)(3). 49 INA 212(a)(4). 50 INA 212(a)(5). 51 INA 212(a)(6). 52 INA 212(a)(7). 53 INA 212(a)(8). 54 Another additional category, INA 212(a)(10), is titled Miscellaneous and declares, inter alia, individuals who practice polygamy inadmissible. 55 INA 212(a)(9). Noronha 8

INA 212(a)(9)(b) sets forth the following requirements: ALIENS UNLAWFULLY PRESENT.- (i) In general.-any alien (other than an alien lawfully admitted for permanent residence) who- (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States is inadmissible. (ii) Construction of unlawful presence.-for purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. 56 In other words, if a migrant overstayed his non-immigrant visa or entered the United States without authorization and then left the United States, the migrant is subjected to a bar to readmission. This bar varies according to the time that the migrant spent in the United States without authorization. Under INA 212(a)(9)(b)(i)(I), if an unlawfully present migrant remained in the United States for 180 days to less than one year, and then leaves the country, the migrant cannot enter the United States for three years. Even worse, under INA 212(a)(9)(b)(i)(II), if an unlawfully present migrant remained in the United States for one year or more, and departed the United States, that migrant cannot re-enter the United States for ten years. Figure 2: Re-Entry Bars Under INA 212 3 Year Bar to Re-Entry Remained in the United States unlawfully for 180 days to 1 year 10 Year Bar to Re-Entry Remained in the United States unlawfully for more than 1 year 56 INA 212(a)(9)(b). Noronha 9

This INA provision is particularly problematic for migrants who are now eligible to obtain an immigrant visa. As explained before, this migrant must return to his or her home country to obtain the visa. Due to INA 212(a)(9)(b), if that migrant leaves the country, he or she will face either a three or ten year bar to re-entry. This bar applies if the migrant tries to come back to the United States after leaving to obtain a visa or for other reasons. Therefore, an unauthorized migrant will probably not risk leaving the country to obtain a legal immigrant visa, but rather, remain in the United States with undocumented status. INA 245(i) & The LIFE Act In 1994, Congress finally provided a remedy for this problem by adopting INA 245(i). 57 According to a Senate Report on the provision, the main purpose of INA 245(i) was to transfer overwhelming workload from the U.S. consulates abroad to the United States. 58 The statutory language of INA 245(i) is as follows: (i) (1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States-- (A) who (i) entered the United States without inspection; or (ii) is within one of the classes enumerated in subsection (c) of this section; (B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of-- (i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or (ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 57 See DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS ACT, 1995, PL 103 317, August 26, 1994, 108 Stat 1724. 58 S. REP. 103-309, 134. Noronha 10

(C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on the date of the enactment of the LIFE Act Amendments of 2000; may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who- (i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986; (ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and (iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section and (2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if- (A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed. This statute authorizes those who have unlawful status in the United States to adjust status to legal permanent resident if an immigrant visa is immediately available to them. The migrant does not have to return to his or her home country to obtain this visa, but instead, can apply for the visa in the United States. The Senate had originally proposed passage of the bill without a sunset provision, but it was eventually passed with an expiration set for 1997. 59 59 H.R. CONF. REP.103-708, 83 (stating: Amendment No. 131: Inserts a general provision which amends the Immigration and Nationality Act to permit aliens to adjust their status in the United States upon payment of certain fees. The provision also establishes requirements for aliens who decide to adjust their status outside of the United Noronha 11

This section was extended to apply in 1997 and again in 2000 as the Legal Immigration Family Equity Act ( LIFE Act ). 60 On April 30, 2001, the LIFE Act expired and only those migrants who had put in an application prior to that date could adjust status under INA 245(i). On September 6, 2001, a proposed extension of INA 245(i) was discussed on the floor between Senators Kennedy, Leahy, Reid and Daschle, with the caveat that a family or employment relationship must have existed prior to a certain date for a migrant to be eligible. 61 Senator Daschle emphatically supported the bill by giving the following summary of the bill s purpose 62 : Today, immigrants who don't have the proper documentation to stay in the United States, but do have the legal right to become permanent residents because they are the spouses of US citizens can be stuck in a horrible catch-22 situation. If they return to their home country to get the immigrant visa to which they are entitled, they can be barred from re-entering the United States for up to 10 years. Take the example of a woman named Norma. Norma entered the U.S. from Mexico, and settled in North Carolina. She then married a U.S. citizen. They have been married over two years, have a child, are expecting another this fall, and recently bought a new home for their growing family. Norma and her husband are torn on what to do about her immigration status. As the wife of a citizen, she qualifies for an immigrant visa. However, if she returns to Mexico to obtain her visa, she would be barred from re-entering the U.S. for 10 years. Norma doesn't want to leave her husband, her children, or her home for 10 years-and she shouldn't have to. States at a United States consulate. The provision also exempts spouses and children of aliens from these new requirements. In addition, the provision requires the Attorney General to deposit the sums collected pursuant to this provision in the Immigration and Naturalization Services Immigration Examinations Fee account. The provision also requires INS to conduct full fingerprint identification checks through the FBI for all individuals over 16 years of age who are adjusting their immigration status in the U.S. pursuant to this provision. Finally, the provision includes language which sunsets the provision at the end of fiscal year 1997. The Senate had proposed the provision contained in the conference agreement as a permanent change in law without any sunset provision. The House bill contained no provision on this matter. ). 60 D.C. APPROPRIATIONS FY 2001, PL 106 553, Dec. 21, 2000, 114 Stat 2762. 61 147 CONG. REC. S9190 (daily ed. Sept. 6, 2001) (statement of Senators Kennedy, Leahy, Reid and Daschle). 62 Id. Noronha 12

Despite 30 Republican and Democratic co-sponsors 63, the bill did not pass. The LIFE Act benefits have not been extended in over twelve years. As enacted, the LIFE Act only applied to those who a) entered the United States without inspection or b) were part of the classes of people excluded from adjusting status by a reason stated in INA 245(c), as explained above. Therefore, those who had unlawful status by overstaying a nonimmigrant visa or failing to obtain lawful admission are allowed to adjust status under INA 245(i). The LIFE Act allowed many people to adjust status from unlawful status to legal permanent resident. Under this Act, the unauthorized migrant had to pay a $1000 fee in order to adjust status. The former Immigration and Naturalization Service ( INS ) did not maintain records that specifically identified how many people applied for adjustment of status under INA 245(i) throughout the entire period that the statute applied. While overall numbers are hard to find, according to former Senator Daschle, seventy-five percent of INA 245(i) applicants were spouses and children of U.S. citizens and LPRs. 64 The INS, however, did keep track of the overall number of applications made for adjustment of status per year. In fiscal year 1994, when the law was first implemented, there were 121,000 pending applications for adjustment of status. 65 In fiscal year 1997, that number increased to 699,000. While difficult to determine whether the rise in applications came solely from the increased number of applications under INA 245(i), there was a significant increase in the number of unauthorized migrants arriving in the United States in the 1995-1999 time frame, 63 Id. 64 Id. 65 Annual Report: Legal Immigration, Fiscal Year 1997, U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, OFFICE OF POLICY AND PLANNING, STATISTICS BRANCH, (Jan. 1999), Vol. 1, http://www.dhs.gov/xlibrary/assets/statistics/reports/97legal.pdf Noronha 13

as opposed to the 1990-1994 time frame. 66 Therefore, some of these increased applications most likely were filed under INA 245(i). Although hundreds of thousands of applications may be small when compared to the population of unauthorized migrants in the United States, it is still significant enough to provide lawful status to many unauthorized migrants in the United States. REASONS FOR CHANGE The Unauthorized Migrant Problem Because the LIFE Act has expired, those who are in the country without lawful status and have a visa readily available to them are unable to adjust status to legal permanent resident. These people are stuck in the United States and unable to travel to their home countries to receive their visas because of the severe re-entry bars. These people are further held back from integrating into United States society because they may not want to make their presence known to the authorities. 67 Their civic engagement, therefore, is not as high as it may be if these people had lawful status. According to the U.S. Department of Homeland Security s Office of Immigration Statistics, the numbers of unauthorized migrants in the United States is staggeringly high. The latest 2011 estimates indicate that 11.5 million unauthorized migrants are present in the United States. 68 Not only does this number include those migrants who have entered the United States 66 Michael Hoefer, Nancy Rytina and Bryan Baker, Estimates of the Unauthorized Immigration Population Residing in the United States: January 2011, U.S. Department of Homeland Security, Office of Immigration Statistics (March 2012), http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf. 67 By becoming more active in society, unauthorized migrants may draw more attention to their presence in a community. If Immigration and Customs Enforcement, the federal agency responsible for enforcing the immigration laws, becomes aware of their presence, these migrants face deportation. Therefore, these migrants may not complain to authorities if they are experiencing abuse or injustices. For example, if an employer is refusing to pay minimum wage to these migrants, the migrants may not wish to draw attention to the problem for fear of deportation. This same fear of reporting abuses can also translate to a lack of civic engagement. Accordingly, unauthorized migrants are not heard in the public sphere, so their key issues and opinions often have no outlet with elected officials. 68 Id. Noronha 14

without inspection, but it also includes those migrants who have simply overstayed a temporary, non-immigrant visa. This 2011 figure has decreased slightly from 2010, when 11.6 million unauthorized migrants were estimated to be in the United States. 69 The following chart reflects the overall levels of unauthorized migrants for many years in the past decade: 70 14,000,000 12,000,000 10,000,000 8,000,000 6,000,000 4,000,000 2,000,000 0 Figure 3: Number of Unauthorized Migrants Present in the U.S. 2000 2005 2006 2007 2008 2009 2010 2011 As reflected in the above chart, the level of unauthorized migrants in the United States has remained relatively high over the past decade. Therefore, it is imperative to consider all solutions to curb this problem. The next chart shows the number of unauthorized migrants who entered the United States by the time period in which they entered. 71 69 Id. 70 Id. 71 Id. Noronha 15

4,000,000 Figure 4: Unauthorized Migrants By Year of Entry 3,000,000 2,000,000 1,000,000 0 1990-1994 1995-1999 2000-2004 2005-2010 As the chart illustrates, many unauthorized migrants came to the United States in the late 1990s and early 2000s. Because the LIFE Act expired in April 2001, most of these new unauthorized migrants could not take advantage of its benefits should they have a visa become immediately available. Additionally, different states are sometimes affected more by the unauthorized migrant populations. The following chart shows the Department of Homeland Security s Office of Immigration Statistics 2011 estimates for unauthorized migrants, by state of residence: 72 72 Id. Noronha 16

Figure 5: 2011 Unauthorized Migrant Population by State Washington Arizona North Carolina New Jersey Georgia Illinois New York Florida Texas California Other States 260,000 360,000 400,000 420,000 440,000 550,000 630,000 740,000 1,790,000 2,830,000 3,100,000 0 500,000 1,000,000 1,500,000 2,000,000 2,500,000 3,000,000 3,500,000 The Pew Research Center notes that in March 2010, the unauthorized migrant population in the United States hovered around 3.4%. 73 While the total unauthorized migrant population was only around that three-percent number, unauthorized migrants comprised 5.2% of the labor force. 74 Therefore, unauthorized migrants make up a higher percentage of the workforce than their overall population estimate. As discussed above, employer-sponsored visa applications are generally current, meaning that the U.S. Citizenship and Immigration Services is able to process current applications for visas made by employers. Therefore, extending INA 245(i) coverage will help undocumented workers secure a path to citizenship. The Long Road to Visa Availability One specific requirement of INA 245(i) is that the applicant must have a visa immediately available to him. The wait time is particularly egregious for family members of U.S. citizens and legal permanent residents who are trying to come to the United States by legal 73 Jeffrey S. Passel, Unauthorized Immigrant Population: National and State Trends, 2010, PEW RESEARCH CENTER (Feb. 1, 2011), available at: http://pewresearch.org/pubs/1876/unauthorized-immigrant-population-united-statesnational-state-trends-2010. 74 Id. Noronha 17

means. For example, prior to 1968, immigrants from the Western Hemisphere, including Central and South America, were not subject to the ceilings on immigrants that are currently in place. 75 Today, immigrants from Mexico face some of the longest lines in the visa queue because of the increased demand for visas from Mexico based on the family-sponsored category. For example, as of July 2012, U.S. Citizenship and Immigration Services is currently processing applications that were made on behalf of unmarried sons and daughters of U.S. citizens in June 1993. 76 In comparison, U.S. Citizenship and Immigration Services is currently processing similar applications from China and India that were made in July 2005. The over eleven-year disparity reflects the long wait times that many Mexicans must face to gain legal status in the United States. In turn, this extended waiting period may cause some Mexicans to turn to other forms of entering the US, namely, without authorization at the border. The disparity does not only occur between applicants from different countries. The type of visa is also extremely important in determining visa availability. The following charts show the difference in processing times between a family-sponsored and employer sponsored visa application: Figure 6: July 2012 Visa Bulletin: Family-Sponsored Visa Applications Currently Being Processed 77 75 Three Decades of Mass Immigration: The Legacy of the 1965 Immigration Act, CENTER FOR IMMIGRATION STUDIES (Sept. 1995), http://www.cis.org/articles/1995/back395.html. 76 Immigrant Numbers for July 2012, supra note 27. 77 Id. Noronha 18

Figure 7: July 2012 Visa Bulletin: Employment-Based Visa Applications Currently Being Processed 78 Looking at the visa bulletin for July 2012, significantly more of the employer-sponsored visa application categories are current, as opposed to the family-sponsored visa application categories. Therefore, if an employer can sponsor an unauthorized migrant, that migrant has a better chance of having a visa immediately available. As the above chart illustrates, the first employment-based preference is completely current. This first preference is comprised of aliens with extraordinary ability, 79 outstanding professors and researchers, 80 and multinational executives and managers who have worked for a multinational firm for at least one year 81. As evident by those categories, these are the highly skilled workers or those who hold PhDs. These workers are more likely to have entered the 78 Id. 79 INA 203(b)(1)(A). 80 INA 203(b)(1)(B). 81 INA 203(b)(1)(C). Noronha 19

United States through legal means, such as a student visa, and overstayed their visa. Therefore, these workers are most likely to benefit from a renewed INA 245(i). Immigration policy cannot change overnight. The recent healthcare debacle demonstrates the country s unwillingness to embrace a massive overhaul of the current system. A small push forward, on the other hand, can move the nation in the direction of providing more paths to citizenship. This policy proposal calls for simply providing a path to citizenship for those who have lawful visas readily available, without having to suffer the three or ten year bars to re-entry. PROPOSAL FOR REFORM Argument Against a Renewed INA 245(i) Representative Jim Sensenbrenner, former head of the House Judiciary Committee, opposed the renewal of INA 245(i), as reflected in the statement below: I believe we must also recognize that by allowing illegal immigrants to adjust their status in the United States, section 245(i) serves as an open invitation to those waiting in the queue for immigrant visas to jump the line and enter the United States illegally. This is not fair to those immigrants who respect the immigration laws of our country and wait patiently in their home countries for visas, sometimes for years. Such line-jumping negates the deterrent power of the bar on readmission for long-term illegal immigrants, which was a key reform of our immigration laws. Statement of Rep. Jim Sensenbrenner, May 21, 2001. 82 The chief complaint of those who are against a renewed INA 245(i) is that renewing the provision will reward those who took illegal means to enter or remain in the United States, thereby encouraging more illegal immigration. Representative Sensenbrenner was most 82 147 CONG REC H 2354 (daily ed. May 21, 2001) (statement of Rep. Sensenbrenner). Noronha 20

concerned that INA 245(i) permitted line-jumpers. On the contrary, INA 245(i) did not allow people to jump lines in the visa process because only those who had visas immediately available to them could apply. Nevertheless, INA 245(i) failed to pass, possibly because it expired in close proximity to the September 11 th terrorist attacks. 83 A Bi-Partisan Solution and Renewal of INA 245(i) There are at least three good reasons to extend 245(i). First, it allows families to stay together in the United States instead of forcing family members to return to their native countries to apply for their green cards. Second, because immigrants can also qualify to become legal permanent residents based on an employment relationship, extending 245(i) will allow businesses to retain vital employees. Third, because immigrants have to pay a $1000 fee to apply under 245(i), this program raises millions of dollars for the Federal treasury. Statement of Senator Patrick Leahy, Sep. 6, 2001. After more than ten years since September 11 th, the country is ready to embrace a new program allowing for more citizenship pathways. Some have argued that the overall numbers of unauthorized migrants are even declining because of the economic decline in the United States following the 2008 economic crisis. 84 Coupled with a renewed focus on immigration policy, the time is ripe to consider a renewal of INA 245(i). Policy Proposal The following simple policy proposal will help many unauthorized migrants find a path to legal citizenship. It is important to note that this policy proposal does not call for amnesty for unauthorized migrants. These migrants must already have visas immediately available to them 83 See 148 CONG. REC. H 810 (daily ed. March 12, 2002) (statement of Rep. Bereuter) available at: http://www.gpo.gov/fdsys/pkg/crec-2002-03-12/pdf/crec-2002-03-12-pt1-pgh810.pdf#page=1. 84 Jeffrey Passel, D Vera Cohn and Ana Gonzalez-Barrera, Net Migration from Mexico Falls to Zero and Perhaps Less, PEW RESEARCH CENTER, PEW HISPANIC CENTER (April 23, 2012), http://www.pewhispanic.org/2012/04/23/net-migration-from-mexico-falls-to-zero-and-perhaps-less/ Noronha 21

in order to benefit from this new policy. The unauthorized migrants could always leave the United States to get this visa, but be subjected to the three or ten year bars to re-entry. First, this proposal calls for amending INA 245(i) to eliminate the filing deadline of April 30, 2001, for adjustment of status. Eliminating this date allows those who would be subjected to re-entry bars to file a visa petition and collect that visa all while remaining in the United States. This extension would please liberal lawmakers who seek more pathways to citizenship. Second, there should be an increase in the fees paid to adjust status. According to the Bureau of Labor Statistics, the original $1000 fee paid in 1994, controlling for inflation, would today be the same as $1545.91. 85 I propose adding new fee schedules to INA 245(i) based on the length of unlawful residence in the United States. This new fee schedule would emphasize that maintaining unlawful status in the United States is subject to increased monetary penalties, thereby discouraging unauthorized migrants to come to the United States through illegal means. If the same migrant instead chose a legal path to citizenship, no such fees would be associated with his or her application. A proposed fee schedule is below: Figure 8: Proposed Fee Schedule Length of Unlawful Status in the United States Penalty for Filing Under INA 245(i) Up to 1 year $2000 1 year to 5 years $3000 5 years + $4000 These increased fees can significantly raise revenue for the U.S. Department of Homeland Security. 86 To please conservative lawmakers who sign on to the extension, the funds 85 CPI Inflation Calculator, UNITED STATES DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS, available at: http://www.bls.gov/data/inflation_calculator.htm/ (last visited July 25, 2012). 86 According to data cited supra at n.66, the 2000 level of unauthorized migrants in the United States was approximately 8.5 million. According to the Department of Homeland Security s Budget Request of $55 billion, 21% of the DHS budget is for U.S. Customs and Border Protection (Adding $1,150,000,000 to Customs and Border Noronha 22

accumulated by the U.S. Department of Homeland Security, as a result of the extension, can be used exclusively for increased border security and protection. Trying to determine how much revenue could be raised from such an extension requires some investigation. For example, exact estimates for those who successfully adjusted status under INA 245(i) is not available. The former INS, however, did make data available on the number of applications for adjustment of status. In 2001, the former INS received 640,000 adjustment of status applications. 87 Of those applications, approximately 215,000 were filed under INA 245(i). 88 In 2000, the former INS estimated the level of unauthorized migrants at approximately 8.5 million. 89 Therefore, the approximate percentage of INA 245(i) applicants was around 2.5% of the unauthorized migrant population. Today, that number would be approximately 287,500 applicants, assuming an 11.5 million population 90 of unauthorized migrants and that the rates of applicants will remain constant. Assuming these unauthorized aliens have remained in the United States for more than five years, a $4,000 application fee would raise $1.15 billion. According to the Department of Homeland Security s Budget Request of $55 billion, 21% of the DHS budget is for U.S. Customs and Border Protection. 91 ultimate goal of U.S. Customs and Border Protection is to protect the U.S. borders. 92 The Adding $1.15 billion to Customs and Border Protection s budget would represent an approximately ten percent increase to Customs and Border Protection s overall budget. Therefore, Customs and Protection s Budget would represent an approximately 10% increase in the overall budget for Customs and Border Protection. 87 Andorra Bruno, Immigration: Adjustment to Permanent Resident Status Under Section 245(i), CRS REPORT FOR CONGRESS p. 7 (April 18, 2002), available at: http://assets.opencrs.com/rpts/rl31373_20020418.pdf. 88 Id. 89 Hoefer, supra at n. 66. 90 Id. 91 FY 2013 Budget in Brief, U.S. DEPARTMENT OF HOMELAND SECURITY, available at: http://ipv6.dhs.gov/xlibrary/assets/mgmt/dhs-budget-in-brief-fy2013.pdf (last visited August 17, 2012). 92 CBP Mission Statement and Core Values, U.S. DEPARTMENT OF HOMELAND SECURITY, CUSTOMS AND BORDER PROTECTION (Feb. 17, 2009), available at: http://www.cbp.gov/xp/cgov/about/mission/guardians.xml. Noronha 23

Border Protection could more aptly protect our borders with such a significant change in its overall budget. In conclusion, the above proposal satisfies the left and right of the political spectrum by first providing a new pathway to citizenship but also increasing penalties for those who choose to come to the United States without authorization. By doing so, the unauthorized migrant population in the United States could experience a significant change in legal status. This new pathway to citizenship can open doors for many people who wish to gain legal status but are deterred by the significant time penalties buried in the Immigration and Nationality Act. Noronha 24