The Immigration 'Problem.' We need to create another option.

A sign warning drivers near the border about families running across the freeway.

If there are enough people running across the freeway near the border that the government needs to put a sign up, we have a problem. The U.S. immigration problem is very complex but has been contorted to get it into sounds bytes by the current policy machines. The result is an either / or scenario and a race to the bottom, where the two political parties argue their polar stances in blue or red ties. But this sign says it all. It is more practical, safer and more humane to  address the issue and do something to protect those in our country than to ignore the people . 

In immigration law, it is easy to slip into the habit of creating a dichotomy out of every issue:

• You're either an immigrant (permanent intent) or a non-immigrant (temporary intent);
• You're legal or illegal;
• A citizen or an alien;
• Admitted or not admitted;
• Admissible or inadmissible;
• Have been convicted or have not been convicted of a crime; and,

• Your permanent residence has conditions attached to it or does not. That is when you were granted permanent residence you were given only two years to begin with and must release conditions (show that you are still married to or working for the petitioner , or are not but had a bona fide relationship not just for immigration benefits at the time you applied for and were granted benefits), or you were given full permanent resident status.
  

This seems to be the trap that many commentators, legislators and critics have fallen into when discussing the current population of individuals who entered the U.S. without inspection. It is difficult to get past the notion of giving illegal aliens permanent resident status without creating an incentive for future illegal entrants, so I think the only way to move on is to create a new, third residence status - Probationary Residence. This status would only apply to people currently physically present, so registering after the initiation date would be futile.

I propose that when it comes to creating a legal method for these people to cure their immigration status, we need the new status to account for the fact that these people are not here temporarily but are not considered permanent either, and so can enter into a status that allows them to convert to another status. No conversion and they must leave when the status expires - just like non-immigrant visa holders.

We could pick a date, say January 1, 2008, and make it so that anyone who does not register with the government and prove that they are physically present on or before that date cannot come forward for benefits. We would have to ensure that this would not be a 'round-up' and that coming forward to register physical presence would definitely not lead to enforcement action.

Those people who do register to prove that they are physically present would then pay for a number and wait for it to be called. Once called, those people would have to establish that they do not have any criminal issues (other than working without authorization and the attendant documentary issues) and could be given Probationary Residence. This status could require them to report frequently their whereabouts and perhaps could include an auto-deduct from their pay to cover the costs of the immigration processing instead of making them pay for it all at once. 12 million people coming forward would need to be delicately handled, so payment for the proof of physical presence and a number in line would likely need to be more than the current cost of attaining a green card ($1365).

This probationary status would only last for a specified time, during which the people could convert to another status without being treated as having entered without inspection. This would allow family members to petition for each other and for employers to hire workers legitimately and would not make the current illegal population so afraid to become witnesses in criminal cases or to comply with laws designed to protect all Americans from harm - such as driving regulations and workplace certifications.

Probationary Residence would not be amnesty. Those that could not come forward because of criminal issues would not be able to keep up with what is sure to become a society where identity is too hard to fake and anonymity is impossible. The process of elimination would allow enforcement to focus on the people that do need to be removed and would create an even greater incentive for people with no criminal issues to come forward.

This is a very difficult issue that seems to be stuck without resolution because we can't see past the dichotomy of permanent versus temporary. If the U.S. wants to remain competitive going forward, we will need to convert these valuable people into meaningful participants in our society or paranoia will overcome us and we will grow even more divided. Right now, we have no conceptual answer to the issue and that is what we need. Do we really think that the undocumented population does not intend to stay? Then why do we treat this as a temporary problem when it is so obviously permanent. Why? Because we don't have a choice such as Probationary Residence to rely on.

If we had Probationary Residence we could have a population of legal, admitted, admissible aliens with hope and incentive instead of a population of illegal, undocumented people that are not available for the U.S. economy and society to embrace.

If you would like to learn more about this or any other issue concerning U.S. immigration law, please contact one of our immigration attorneys directly at Seattle (206) 262-0561; Bellingham (360) 734-5260; Vancouver (604) 495-6392; or email me - duncan@usborderlaw.com

We are always glad to connect you directly with an experienced immigration lawyer.