Top Ten Immigration Fixes -- No. 7 End the distinction between someone who overstays and someone who enters without inspection.
One of the most illogical notions contained in our immigration laws is found within our “adjustment of status” statute. Pursuant to 8 U.S.C. § 1255(a), once an immigrant visa petition is approved and an immigrant visa is immediately available, any alien “inspected and admitted or paroled into the United States” is eligible to apply for adjustment of status to lawful permanent residency without leaving the United States. For example, if a man from Kenya enters the United States as a tourist and decides to overstay his visa, but later legitimately marries a United States citizen, he is eligible to apply for residency inside the United States. This is true no matter how long the person was here out of status. But, if a man from Mexico sneaks into the United States but later legitimately marries a United States citizen, he is ineligible to pursue legalization within the United States because he was not “inspected, admitted or paroled.” For purposes of legalizing one’s status within the United States, there should be no distinction between one who overstayed and one who entered without inspection. Each applicant has to go through a battery of security checks. The end result with each would be a documented alien and an intact family. President George H.W. Bush attempted to end the distinction when he signed into law 8 U.S.C. § 1255(i) -- also called § 245(i). The law allowed undocumented aliens otherwise eligible for residency the opportunity to apply within the United States upon payment of a fine. But the law had a sunset provision. The sunset date was extended three times through bills signed by President Clinton. But 8 U.S.C. § 1255(i) expired on April 30, 2001. President George W. Bush supported its renewal consistently, but the provision was never renewed. The result is more undocumented individuals in the United States who are otherwise eligible for residency but for the manner in which they entered out country. They cannot leave because of the unlawful presence bars (see our previous blogs) and cannot apply in the United States because of the manner in which our “adjustment of status” statute was drafted. So these individuals stay in our country illegally. This is another easy fix which continues to fails because opponents scream amnesty.
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