On Jul 19 2016 by William A. Stock

Providing a Path to Legal Status is in America’s Best Interest

Last month, I wrote about the genius of the United States' immigration policy, in that it welcomed high-potential individuals who came to the United States as refugees or family-based immigrants. While it is often mentioned that Sergei Brin, co-founder of Google, was an immigrant, what is less known is that he entered as a child with his family, who were granted refugee status from Russia.

At the time we made that admission decision, we had no idea what would become of young Brin. We did know that his parents had enough initiative and drive to look at their circumstances in Russia and take the difficult step of leaving it all behind in order to make a new life—a drive that they passed on to Brin, and that helped him achieve success in his adopted home. It is this drive to make a better life that is the defining characteristic of immigrants, however they come to the United States.

The past genius of our immigration policy was that it did not only provide pathways for those whose arrival was anticipated—family-based, employment-based or otherwise. No, the past genius of our immigration policy was the paths it provided to legal status for those whose arrival was not anticipated, or perhaps even welcomed when they arrived.

Several years ago, Johns Hopkins Hospital highlighted the unusual life story of the director of their brain tumor program, Dr. Alfredo Quiñones. He came to the United States at age 18, crossing the border near Calexico to work in the tomato fields, thinking he would save up some money. He was able to realize his full potential, however, because of the 1986 “amnesty.” Because of his work in agriculture, he was able to get a temporary resident card, and then a green card, in spite of his illegal entry. Immigration status in hand, he was able to attend college and medical school, and is now at the forefront of brain cancer research and treatment. His life story is inspirational—so inspirational that Brad Pitt is developing a movie from it.

The sad reality of immigration law today, however, is that our current undocumented youth have a much more challenging path to legal status in the United States. If a young Alfredo Quiñones came to an immigration attorney today from the tomato fields with dreams of getting a green card and attending college, we would have to tell him there was no particular path forward for him. He was 18 years old when he entered, making him too old even for President Obama’s Deferred Action for Childhood Arrivals program. As such, he would not even be eligible for a work permit, let alone a path to a green card. Even if we met him later, and he had managed to work his way through community college to Berkeley, where he met and later married a U.S. citizen, his path to legal status would still be difficult. Since he entered without inspection, his wife would be able to sponsor him for a green card, but he would be unable to get a green card through her without departing the United States to obtain it. By departing to process an immigrant visa, he would be subject to a 10-year bar on readmission. Before departing, then, he would have to file an application for a waiver of that 10-year bar. That waiver could only be approved if his wife could prove that a 10-year separation (or 10 years banished to Mexico with him) would cause her “extreme hardship”—not just the normal hardships of being separated or of having to make a new life in a new country, but an “extreme” hardship.

Quiñones’ story encapsulates the biggest difference between the practice of immigration law at the beginning of my career and the practice of immigration law today. When I began practicing in 1993, if a prospective client came in to my office without legal status, I could usually offer them a path back to legal status. That path might be difficult—it might involve changing jobs, obtaining more education, or long quota delays—but it was a path forward. Since the early 2000s, consultations have to end all too often with the fateful news: under the law today, there is no path back to legality. Is it any wonder, then, that as paths to legal status became narrower and narrower through the end of the 1990s, that the number of people without legal status residing in the United States increased?

Since 2011, the undocumented population in the United States has stabilized at about 11 million. About 10 percent of those undocumented people were brought here as children, and have now been raised in the United States for their whole lives. Another 35 to 40 percent of these people have children who are U.S. citizens and whom we would have to support if their parent or parents were deported. Those immigrants all made the choice to make a better life for themselves by coming to the United States and working hard. Providing them a path forward—a path to legal status, a path to permanent residence, a path to citizenship–is in America’s best interest. By doing so, we are welcoming not only them, but the future business founders, brain surgeons and leaders who have been disproportionately represented by America’s striving immigrant communities.

Reprinted with permission from the July 19, 2016 edition of the The Legal Intelligencer© 2016 ALM Media Properties, LLC. All rights reserved.

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