The United States has always had a “path to citizenship.” One of my ancestors simply went to a judge in St. Louis in 1850, proved he had been here for two years since getting off the boat and renounced his allegiance to the Queen of Prussia.
A few decades later, Congress added two requirements: You had to prove you weren't a criminal and that you could support yourself. After World War II, Congress began the sponsorship system. A loved one who was already a citizen petitioned for you. Or if you had a special skill, or proved you were not taking work from an American, an employer sponsored you.
Since 1882, the government could and would deport you if you were unlawfully here. But the American people are just. For example, Herbert Hoover signed a “registry” law in 1929 allowing the undocumented to become legal if they showed tax payments, lack of criminal record, good health, seven years' residence and other “equities.” Ronald Reagan signed a similar measure in 1986.
Republicans today could pick up the ball from those GOP presidents, not by creating a new path, as in the 600-page immigration bill the Senate passed in 2006. Instead, they could unblock the old paths Hoover and Reagan created. They could do this in signature conservative fashion — by taking a few laws off the books, not adding them.
The worst offender in U.S. immigration law is a floor amendment that was slipped into a spending bill by a one-term congressman in 1996. President Clinton reluctantly signed the bill, to avoid government shutdown. But he added a signing statement, as President George W. Bush did with many of his signings, denouncing the harsh effect on long-term immigrants and their families. The amendment blocks immigrants who are here unlawfully from pursuing legal immigration for 10 years to life, depending on arcane rules for calculating “unlawful presence time.”
This amendment, known as the “10 year bar,” prevents undocumented people from getting into the formal immigration process. A business cannot petition for a tried and valuable employee. A burgeoning ethnic church cannot sponsor its pastor whose visa has lapsed.
Worst of all, the bar prevents a U.S. citizen husband or wife from getting a visa for his or her undocumented spouse, no matter how long the marriage, how big the mortgage payment or how many U.S. children will go on welfare if the spouse is deported or cannot get legal work authorization. Limited waivers are available under current law, but getting them requires thousands of dollars in legal and filing fees, and the law is set up so that they cover only a small percentage of affected families.
In addition to the 10-year bar, immigration law requires that most violators who want to fix their status must travel back to their native countries, wait out their time penalty and then “get in line” at a U.S. consulate or embassy. Such hurdles have had the unintended consequence of actually increasing illegal immigration, as undocumented people get trapped here, unable to reasonably fix their situation.
If the new Republican Congress thinks canceling such laws is too radical, it could still fix them by authorizing a broad waiver approvable upon payment of a fine, or just by changing a few numerals.
Or it could adjust Hoover's registry law, which was last updated in 1986. It now requires proof that an immigrant has been in the country since 1972. Congress could change that to a year of its choosing, cutting down the now 40-year residency requirement to something closer to the law's original idea. Or the ceiling on annual immigration quotas could be raised, so that a high-tech engineer no longer has to wait nine years from filing for legal residency and a work permit to getting a green card.
President Obama wouldn't dare to veto such changes, and any of them would defeat him at his own game. Much of his executive order would wither on the vine, as nuclear families were reunited and employers once again sponsored their workforce in ways that existed in most of the 20th century.
David E. Funke is an adjunct professor of immigration law at Louis D. Brandeis School of Law at the University of Louisville in Kentucky and an attorney.
This op-ed is part of an ongoing exploration in Opinion of the meaning of citizenship in America today. For more, join us at latimes.com/citizenship and #21stCenturyCitizen. We’d love to hear from you. Share your thoughts, rebuttals and experiences with us at email@example.com.
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