This law keeps one million undocumented residents in the shadows

Legislation established under President Bill Clinton created a cruel Catch-22 for undocumented spouses of legal U.S. residents.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) forbids immigrant adults who have stayed in the United States without documentation for more than a year from re-entering the country for ten years. A person who stayed less than one year but more than 180 days is barred for three years. What’s more, the paperwork for these individuals to apply for a green card—to establish legal permanent residence—must be filed outside of the United States.

This means that even if an unauthorized immigrant believes she is eligible to become a lawful permanent resident through sponsorship by a family member, spouse, or employer, she will need to leave the country. But leaving the country would trigger a ten-year bar on her re-entering the United States.

This paradox effectively traps people in an undocumented status. For an undocumented person who wants to be sponsored by their spouse, filing the paperwork to gain legal status means abandoning that spouse and any children they may have to go to another country for an entire decade. This  “pathway” to legal citizenship breaks apart relationships and families and is thus not a functional course from undocumented to documented status.

IIRIRA stands as a prime example of a policy failure born from political paralysis, an absurd situation born of congressional gridlock. Despite its well-intentioned goals of curbing illegal immigration and promoting immigrant responsibility, the law has been criticized for its inhumane treatment of immigrants, including detention and deportation of non-criminal immigrants—all while expanding immigration enforcement powers. This has created a lot of anguish without making America any more secure, and instead incentivizes immigrants to remain undocumented.

If Congress could overcome their partisan impasse, they could amend egregious legislation such as IIRIRA and pave the way towards a more sensible and compassionate immigration system.

The Migration Policy Institute estimates that “roughly 1.2 million spouses of U.S. citizens or green-card holders are effectively blocked by the ten-year bar from obtaining green cards for which they might otherwise be eligible.” This is no small proportion of the approximately 11.3 million unauthorized immigrants.

A Bandage Remedy for Poorly Conceived Legislation

Initiated in response to a lawsuit, a June 2022 U.S. Customs and Immigration Services (USCIS) policy alert eases some of the burdens but does not fix the problem. Specifically, individuals who had the ten-year bar invoked but have spent ten years in the United States illegally can have their status changed without spending another decade outside of the United States.

This is a confusing “fix” on several counts. First, this update does not override or revoke the original law. People are still incentivized to stay in the shadows instead of following a path to legal status, except with this update, a person can apply after being undocumented for a decade, instead of having to literally leave the country and waiting another decade.

The USCIS policy alert also does not help people who have left the country for any reason and want to get back in before their three or ten years have elapsed. In fact, the policy alert affirms that if a noncitizen tries to enter the United States before their bar is up, they may be forbidden from ever being admitted legally.

The policy alert states:

“If a noncitizen accrues more than 180 days but less than a year of unlawful presence during a single stay in the United States, departs, and again seeks admission within 3 years of such departure, the noncitizen is inadmissible. If a noncitizen accrues 1 year or more of unlawful presence during a single stay in the United States, departs or is removed from the United States, and again seeks admission within 10 years of such departure or removal, the noncitizen is inadmissible.” (Internal citations omitted)

Before this change, the one way around the IIRIRA bars is to file for an I-601 waiver. The waiver exists for people who can prove that their prolonged absence from the United States would cause “extreme hardship” to a spouse or parent who is a citizen or permanent resident. Even on this waiver, people still have to leave the country to apply for their green card.

But this waiver is closer to a pardon than any sort of legislative fix, as it is subject to human discretion. Even people who know about this option—and many do not—would be reluctant to risk loss of their families if circumstances suddenly changed, a bureaucrat decided it was not their day, and they would not be allowed to return.

Moreover, the filing fee for the I-601 is nearly $1,000. And because immigration law can be extremely complex and confusing—the waiver filing can be hundreds of pages—many choose to hire an immigration lawyer to aid with the process, which can add thousands of dollars to the cost of filing. Such costs could make compliance prohibitive to residents with modest incomes.

Inadequate deterrence with a high price

IIRIRA was intended to reduce the number of illegal immigrants coming into the United States. If entering the country illegally meant that a person could not later enter legally, then perhaps people would not arrive illegally. Despite the law’s intended goals, the predictable effect was the opposite.

In years past, undocumented migrants used to come into the United States for seasonal work and return home but, ironically, U.S. law incentivizes people to stay illegally rather than cross borders and repeatedly risk capture and other harm.

Since 1995, the median length of stay for undocumented immigrants has more than doubled, from seven years to 15 years, including a large number of visa overstays. Agricultural workers who used to enter the country on a short-term basis would no longer return to their home countries after they finished the season.

It is clear that the three and ten-year bars are not sufficient deterrents. The experiment has failed: people would rather stay in the country, even with the bars to re-entry, than not come illegally in the first place.

Instead of deterrence and security, the legacy of Bill Clinton’s IIRIRA is family separation, heartbreak, and years of desperate waiting in the shadows. Not only has IIRIRA been ineffective at reducing unauthorized migration, it has also made the country less secure by keeping millions of people outside of the system.

The tragic outcomes of IIRIRA illustrate the absurdity of congressional gridlock over immigration reform. Instead of working together to create sensible and practical solutions to the complex issue of immigration, lawmakers have allowed political posturing and ideological differences to prevent meaningful action. The result is a hodgepodge of ineffective and punitive policies that do little to address the root causes of illegal immigration, but instead create a class of people who live in fear and uncertainty. It is time for Congress to put aside its differences and take a pragmatic and compassionate approach to immigration reform.