New Immigration Law Sacrifices Families

Beginning May 5, aliens who have been in the United States illegally since 1982 will, under terms of the new immigration law, be able to apply to become lawful residents of this country. The Immigration and Naturalization Service has announced that the legalization program, which is part of a one-two punch that Congress is using to clean up the problem of illegal immigration, reflects the “traditional humanitarian concerns of this nation.” Not exactly.

First there are problems with meeting the technical requirements. Aliens must document the very presence that they have been trying for five years to hide. This is difficult because many live and work under assumed names. And they must come up with hefty fees for both the application and the mandatory medical examination. Finally, applicants for legalization must show that they do not fall within any of the INS’ 33 categories of ineligibility, such as being a polygamist or an anarchist.

But for countless undocumented aliens the problem is more fundamental. They must balance the long-hoped-for opportunity of legalization against the disruption of their families.

The Immigration Reform and Control Act of 1986 doesn’t discuss families much. Instead, it adds new terms like unauthorized aliens and special agricultural workers to the vocabulary of illegal immigration.

But many unauthorized aliens are too young to be workers; they are children. And many of the adults are not only workers but spouses and parents as well. Some aliens work here illegally to support families that stayed behind. Others, after securing a job and a place to live, send for spouse and children to join them in the United States. This second pattern of migration creates whole families of undocumented aliens.

The new law is bad for undocumented families in two essential ways. First, by failing to provide “derivative status” to the spouse and children of aliens who qualify for legalization it breaks up existing families. Second, by excluding legalized aliens from public-assistance programs it establishes two standards of care for children legally present in the United States.

“Derivative status” is a common principle in immigration law. It means that when an alien is given permission to enter or remain in the United States, the alien’s spouse and minor children can come as well. The concept recognizes the importance of family integrity, especially for newcomers to our national community. Current immigration law provides derivative status to the families of immigrants, refugees, asylum seekers, students, tourists and temporary workers.

But there is no derivative status for the families of aliens who qualify for amnesty. Each alien must individually meet the five-year requirement. Thus wives who joined their husbands after 1982 are ineligible. Children reunited with parents or born outside the United States after 1982 cannot qualify.

For example, a father and his 10-year-old son came here in 1981. In 1983 the mother and 3-year-old daughter joined them. What are their choices? If the mother leaves voluntarily, she must wait 18 months to reenter. If she stays illegally, she risks deportation. Moreover, her continued illegal presence perpetuates the existence of a shadow class ripe for renewed exploitation. What about the non-qualifying child? Should she be sent back to Mexico? Or--in order to maintain her educational, familial and community ties--should she remain illegally, perhaps at the cost of separation from the non-qualifying parent?

Why did Congress deny derivative status to undocumented families? Perhaps fear of sham marriages. But Congress just enacted the Immigration Marriage Fraud Amendments of 1986, which tighten both scrutiny and penalties for marriages of immigration convenience. Moreover, the Immigration Reform and Control Act could have limited derivative status to couples married before its enactment.

The denial of derivative status may serve another purpose. From the perspective of both employers and government, unmarried aliens are perceived as cheaper dates. There are no dependent family members requiring benefits or services.

But denying derivative status for fiscal reasons was unnecessary. The law already excludes even newly legalized aliens from most federal benefit programs for five years, including Aid to Families With Dependent Children. And the act authorizes states to do the same.

American generosity to immigrant families has rarely been so disingenuous. This new law forces undocumented aliens to choose between remaining in the United States and disrupting their families. Amnesty should not replace the burdens of illegal status with the penalty of family separation. Legalization should not welcome children into poverty.