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Why Can’t Undocumented Immigrants Just Get Legal?

And how Trump’s enforcement policies are exasperating a broken system

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Photo: Alfredo Estrella/AFP/Getty Images

In a twist of sad irony, Helen’s vote for Donald Trump helped split up her family.

These and other high-profile deportations have focused people’s attention on how the U.S. immigration system works. Most of these immigrants played by the rules. They paid their taxes, supported their families, and followed the law. So, for some, the question arises: Why didn’t they legalize their immigration status? Roberto is married to a U.S. citizen, so doesn’t that mean he gets to stay here? Maribel has four children, so can’t the kids sponsor her for a green card?

Marrying a U.S. Citizen: Not a Guarantee Against Deportation

Most people think that marrying a U.S. citizen is a guaranteed path to citizenship. It’s not. I’ve heard many people say, “After all, she’s married to an American. Why can’t she stay here?” It’s way more complex than that, especially if the immigrant entered the country without documents.

The family unity waiver process can take months — sometimes years — with no guarantee the waiver will be granted. All the while, the family remains separated.

The pain of this legal Catch-22 was eased somewhat in 2013 when the Obama administration tweaked the application process by adding a provisional unlawful presence waiver, which allows some undocumented spouses of U.S. citizens to apply for waivers before traveling abroad. This change spared many American families from the pain of prolonged separation while the loved one traveled abroad and waited for the waiver to be processed. It’s uncertain whether the provisional waiver will survive the Trump administration.

Children Cannot Sponsor Parents for Green Cards

It’s a common misconception — falsely pushed by anti-immigrant extremists — that U.S.-citizen children can sponsor their parents for legal immigration status. During the Republican primary, candidate Trump railed against “birthright citizenship” — the clause in the 14th Amendment that grants U.S. citizenship to children born on U.S. soil — claiming it was the “biggest magnet for illegal immigration.”

Trump was lying.

In fact, an undocumented parent seeking to obtain citizenship through his or her child faces an arduous 36-year slog: 21 years for the child to be able to sponsor the parent, 10 years of banishment from the United States because of their previous unlawful presence, and five years waiting as a green card holder to be eligible for U.S. citizenship. When you consider the time it takes to obtain a green card, the claim that women come to the United States illegally to give birth and gain legal status is patently absurd.

Bottom Line: Obtaining Legal Status Is Nearly Impossible for Most Undocumented Immigrants

The outdated, rigid, and poorly structured immigration law makes it nearly impossible for most undocumented immigrants to fix their status in the United States. This is true regardless of whether a person arrived in the country on a lawful visa and later fell out of status, or whether they entered the country without lawful inspection by U.S. immigration officers. That’s because once someone enters the country illegally or overstays their visa, the law prohibits them from applying for legal immigration status from inside the United States. Of course, there are important exceptions to this for victims of crime, persecution, human trafficking, and domestic violence. But for most undocumented immigrants, these outdated and rigid immigration laws offer few options and little forgiveness.

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Written by

Chair, #Immigration Law, Ulmer & Berne LLP, litigator, bylines @USAToday, @CNNOpinion, @msnbc @thehill @tpm @huffpost @HoustonChron, fmr pres @AILANational

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