The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

The Future of U.S. Immigration Law and Policy: Obstacles and Proposals
by Mary L. Field

Immigration is complicated. Every day thousands of foreign citizens travel in and out of the United States for a variety of reasons. Some come to visit, study, and pursue employment opportunities while others come to reunite with family members.  The population of foreign citizens entering the United States is as diverse as the U.S. itself. Immigrants vary in their net worth, educated, race, religion, nationality, and economic class.

Setting the criteria for which foreign citizens should be able to immigrate to the United States is difficult and divisive. Like most developed countries, the focus of our current employment-based immigration system is to attract the best and brightest from overseas.[1] Unfortunately, this leaves very little legal immigration options for unskilled workers and others who do not fall into this category. While the United States has some visas available to low-skill, seasonal workers,[2] generally our immigration law and policy provide no permanent status to such workers. Yet undocumented individuals have settled here and perform a wide-range of labor in our workforce. Their lives have become intertwined with the lives of American citizens through employment, family, and other relationships.

The number of undocumented individuals currently living in the United States is estimated my some sources to be between 10 and 11 million,[3] and most Americans agree that deporting these individuals is not feasible. However, addressing the issue of which undocumented individuals should stay and which should go as well as who should be admitted legally in the future is the subject of much controversy.

Americans must also address the fact that some individuals seeking permanent status in the United States have violated the law. Some have violationed a criminal code while others have violationed the Immigration Act.[4] Immigration Act violations can be serious or minor. The Immigration Act is complicated, inflexible, and not clearly understood by all to whom it applies.

The voting American public simply does not agree on these matters. Given the complexity of the issues involved, it should come as no surprise that Congress has failed to comprehensively address the matter with a single immigration reform package.

The DREAM Act.  The most recent proposed change to the Immigration Act is the Development, Relief, and Education for Alien Minors Act,[5] or the “DREAM Act.” Originally introduced in 2001, this proposal offers permanent resident status to a very small, select group of undocumented individuals who entered the United States prior to age 16. This proposal has been considered several times since 2001, and most recently, it was reintroduced in the U.S. Senate by Senator Harry Reid (D-NV) as part of a defense spending bill.[6]

In order to qualify for residence under this proposal, an individual would need to be under age 35 on the date of enactment and demonstrate entrance into the United States prior to age 16, physical presence in the United States for five years prior to the date of enactment, attainment of a high-school diploma or equivalent, and good moral character. The individual would first earn conditional resident status for a period of two-years which would be converted to permanent resident status after the individual either earns a two-year degree from a United States institution of higher education, completes two years toward a bachelor’s degree from a United States institution of higher education or serves in the U.S. Armed Forces for a period of at least two years and after which an honorable discharge is granted.

Under the current Immigration Act, foreign-born children generally derive immigration status from their parents. If the parents are in undocumented status or achieve their legal status after their children attain age 21,[7] often the children or young adults are left undocumented through no fault of their own. As undocumented aliens, they face deportation, often to a country unknown to them, as their upbringing was in the United States.  The DREAM Act offers relief for a very select group of individuals, but the proposal is significant as it shows an acknowledgment that at times, violations of the Immigration Act are not the fault of the foreign citizen.

Comprehensive Immigration Reform.  Comprehensive Immigration Reform (often referred to as “CIR”) refers to plans put forth by legislators to impose significant changes to the current Immigration and Nationality Act which would benefit many, unlike the select focus of the DREAM Act. To date, no such proposal has passed. Both the U.S. Senate and House of Representatives have recently had members draft such legislation. One such proposal sponsored by Senators Harry Reid (D-NV), Richard Durbin (D-IL), Charles Schumer (D-NY), Patrick Leahy (D-VT), Dianne Feinstein (D-CA) and Robert Menendez (D-NJ), called the Real Enforcement with Practical Answers for Immigration Reform,[8] or “REPAIR,” was introduced in April of 2010. A previous and similar proposal was introduced by Rep. Luis V. Gutierrez (D-IL), called Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009,[9] or “CIR ASAP.” These two proposals are similar in that they both establish methods for the undocumented population to legalize their status while increasing border security.

The REPAIR proposal creates a new temporary visa called an H-2C visa for non-seasonal, non-agricultural workers who perform low-skill labor. This visa would be available to the worker for an initial three-year period, which could then be renewed for an additional three years. The worker would have an opportunity to earn permanent resident status through this program. An annual cap on the number of H-2C visas issued would be imposed, and that cap would be adjustable based on labor market conditions.

Another employment-based aspect of the REPAIR proposal offers permanent resident status to any foreign student who earns an advanced degree (master’s degree or higher) from a United States college or university in the field of science, technology, engineering, or mathematics and who gains an offer of employment from a United States company in their field of study.

REPAIR also implements a plan to offer legal status to all undocumented individuals through a program where such individuals would need to announce their presence in the United States, undergo an application process which includes criminal background screening, fingerprinting, payment of fees, and identity confirmation. These applicants would then receive a newly created, temporary status, called “lawful prospective immigrant”. After remaining in Lawful Prospective Immigrant status for a period of time, the individual would be able to apply for permanent resident status if they qualify based on the following factors, knowledge of the English language, continuous residence in the United States, satisfactory background checks, proper payment of all taxes, and registration for the Selective Service.

The CIR ASAP proposal offered by Rep. Gutierrez also creates a visa program for qualified undocumented workers. It establishes a new status called “conditional non-immigrant,” which can be converted to permanent resident status after a period of time. Conditional non-immigrant status would be attainable through a registration process which includes background checks and requires the applicant to attest to contributions to the United States through employment, education, military service, and community service.

Both REPAIR and CIR ASAP require the applicant to demonstrate physical presence in the United States upon date of enactment of the legislation as a measure to prevent others from illegally entering the United States to participate in the program. Both proposals disqualify individuals with serious criminal backgrounds.

Under both proposals, border patrol and workplace enforcement of immigration laws are to be strengthened as an exchange for the creation of new immigration status for the previously undocumented. The REPAIR proposal adds border patrol officers and creates a bipartisan commission to investigate the state of security on the borders. It also bars state and local governments from enacting their own immigration laws once border control is established. REPAIR directs the Social Security Administration to issue a different version of the Social Security Card that is fraud and tamper resistant, contains the cardholder’s photograph, and a unique biometric identifier. Further, REPAIR creates an improved system for employers to ensure employment eligibility of their workers.

CIR ASAP creates a task force to study southern border security, increases training and equipment provided to border patrol agents and establishes improved systems for verification of worker employment eligibility. Like REPAIR, CIR ASAP clarifies that immigration enforcement lies solely with the federal government. Both REPAIR and CIR ASAP incorporate the provisions of the DREAM Act.

In summary, both of these proposals create a path to permanent resident status for a large portion of currently undocumented immigrants while strengthening the mechanisms to enforce provisions of the Immigration Act. The route to permanent residence under both proposals includes a conditional residency which can be later converted to permanent residency, and both specify that immigration enforcement is the job of the federal government alone. However, neither of these proposals is the current law, and the United States must still address societal issues caused by having a large, undocumented population. State and local governments have attempted to intervene and address the matter themselves, but whether this is proper under our current laws and Constitution remains uncertain.

State and Local Statutes Addressing Immigration Issues.  According to a report from the National Conference of State Legislatures, in the first quarter of 2010, state legislatures in 45 states introduced 1,180 bills and resolutions relating to immigration issues.[10] Immigration related issues addressed by these bills include education, employment, identification/driver’s licenses, and law enforcement.

In April of 2010, the State of Arizona attracted national attention by enacting a bill entitled “Support Our Law Enforcement and Safe Neighborhoods Act,” commonly referred to as S.B. 1070.  S.B. 1070 requires law enforcement officers to check the immigration status and documents of any person stopped if there is reasonable suspicion that the person is unlawfully present in the United States.  It also creates a criminal law requiring legal aliens to carry their immigration documents and outlaws any unauthorized alien from soliciting, applying for or performing work.[11]

The Arizona legislation was greeted with much controversy, and in July of 2010, the United States Department of Justice filed a lawsuit in federal court challenging the authority of a state to enforce immigration laws. An injunction was granted prohibiting implementation of the most controversial provisions of the law.[12] In granting the injunction, the court held that “the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law.”[13] Arizona has filed an appeal of this decision with the Ninth Circuit Court of Appeals, and as of the writing of this article, the matter is still pending.

In Pennsylvania, the city of Hazleton passed a law prohibiting landlords and employers from renting to or hiring undocumented aliens. In 2007, a federal district court found it unconstitutional.[14] That decision was appealed, and on September 9, 2010, the Third Circuit Court of Appeals upheld the district court’s ruling, finding that the Hazleton law undermined federal objectives and usurped the authority of the federal government.[15]

While state and local governments may find themselves frustrated with the federal government’s lack of action on immigration issues, their efforts at resolving the issues themselves so far have met significant challenges.

Administrative Alternatives. Absent comprehensive immigration reform, the U.S. Department of Homeland Security (“DHS”) is faced with the task of addressing the fact that they do not have the resources or capability of applying the Immigration Act uniformly to every, single undocumented alien. However, they do have administrative authority to implement other options. Not every undocumented individual who comes into their contact needs to be deported.

Under Section 212(d)(5)(A) of the Immigration Act, USCIS has the authority to grant “parole” to an alien who has not been formally admitted to the United States The term “parole” refers to the ability of an immigration officer to admit a foreign citizen to the United States when that person is not in possession of a valid visa. A process called “parole-in-place” has been established where the alien is deemed admitted to the United States, even though he never physically entered the country through a legal route. This is significant as it provides aliens who entered the country without inspection, e.g. through an unauthorized route, an opportunity to apply for permanent residence inside the United States Under the current law, an alien applying for permanent residence must show he entered the country after being inspected by an immigration officer.[16] Otherwise, that individual must process his application for permanent residence at the U.S. consulate in his native country, often with no guarantee the application will be approved. At present, parole-in-place is used only in limited circumstances, but its use could be expanded.

DHS can also utilize its authority to grant “deferred action,” which is the exercise of prosecutorial discretion not to deport a certain individual.[17] While deferred action in itself does not confer immigration status on the alien, the circumstances of that individual may change in the future.

Parole-in-place and deferred action are just two of many examples of circumstances where DHS can use discretion when enforcing immigration laws. While not illegal or prohibited by the Immigration Act, the wisdom of having administrative agencies engaging in this type of decision-making must be questioned.

Conclusion. The current law and policy of the United States on immigration does not adequately address the complicated issues raised by immigration. We have an undocumented population too large to remove from the country but the country cannot agree on which individuals should be granted the ability to remain here legally. Because of this disagreement, states are attempting to tackle the issue on their own and administrative agencies are considering alternatives not clearly sanctioned by the American public. Whether Congress will effectively be able to do as courts direct and take control of immigration as mandated by our Constitution and federal law remains to be seen.

[1] The first three preferences of employment-based immigration are (1) Persons of extraordinary ability, outstanding professors and researchers, and multinational managers; (2) Members of the professions holding advanced degrees and aliens of exceptional ability; and (3) Skilled workers, professionals, and other workers. INA § 203(b)(1)-(3).

[2] H-2A, H-2B visas. INA § 101(a)(15)(H)(ii)(a)-(b)

[3] “Solutions that Work A Policy Manual for Immigration Reform,” American Immigration Lawyers Association, AILA InfoNet Doc. No. 10031274 (posted 3/16/10),

[4] The Immigration and Nationality Act, commonly referred to as the “INA” or “Immigration Act” begins at 8 U.S.C. 1101.

[5] S. 1291, 107th Congress (2001-2002)

[6] On September 21, 2010, the bill failed to receive enough votes for passage and was withdrawn by Senator Reid to be reintroduced at a later date.

[7] The INA defines child as an unmarried person under age 21. INA § 101(b)(1). However the Child Status Protection Act (INA § 201(f)) provides certain protection for individuals who reach age 21 prior to completion of the immigration process.

[8] AILA InfoNet Doc. No. 10042912, available at (posted Apr. 29, 2010).

[9] H.R. 4321, 111th Congress (2009-2010)

[10] “2010 Immigration-Related Bills and Resolutions in the States (January-March 2010),” National Conference of State Legislatures,

[11] A.R.S. § 11-1051(B); A.R.S. § 13-1509; A.R.S. § 13-2928(C).

[12] United States v. State of Arizona, 703 F.Supp.2d 980, 30 IER Cases 1633 (D. Ariz. 2010).

[13] United States v. State of Arizona, 703 F.Supp.2d 980, 30 IER Cases 1633 (D. Ariz. 2010).

[14] Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D. Pa. 2007).

[15] Lozano v. City of Hazleton. 2010 WL 3504538, 31 IER Cases 129 (3d Cir. 2010).

[16] INA § 245

[17] Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures), Part X; Meissner, Comm., Memo, HQOPP 50/4 (Nov. 17, 2000), published on AILA InfoNet at Doc. No. 00112702,

Mary L. Field is a solo practitioner in Oak Brook where she concentrates her practice in the area of immigration law. She has a J.D. from Loyola University School of Law and a Bachelor's Degree in Public Accounting from Loyola University School of Business Administration. Currently, she serves as Vice Chair of DCBA's Immigration Law Committee.   

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