The Basics of Illegal Immigration

The Basics of Illegal Immigration

Who are undocumented, or illegal, immigrants? Politicians, news media, and others seem opinionated, but often ill-informed about who these people are, where they came from, and how they fit into American society. Recent changes to the U.S. immigration policy have been proposed, and in some cases passed into law, by the Obama administration.

Who are undocumented immigrants?

An undocumented immigrant and an illegal alien both refer to foreign nationals who do not currently possess a lawful immigration status in the United States. The term “illegal alien” or “illegal immigrant” is a bit disparaging; it sounds like a UFO landed and dumped out foreign creatures that are less than human. These are people; many of them are hard-working people with strong family values simply seeking a better life. The term “undocumented immigrant” though not entirely accurate, is at least not derogatory. Some people come to the United States pursuant to a lawful non-immigrant status such as visitor, student or temporary worker, but stay longer than they are authorized. These people do have immigration documents, therefore, they aren’t exactly “undocumented,” their documents are just expired. These foreign nationals are often referred to as “overstays.”

Many of these people came to the USA with a lawful non-immigrant status such as visitor, temporary worker, student, diplomat or spouse/child of a lawful non-immigrant, but remained in the United States after the expiration of their period of authorized stay.

Penalties For Unlawful Immigration

The Immigration and Nationality Act (“INA”), the federal statute which governs immigration throughout the United States, provides harsh penalties for foreign nationals who sneak across the United States border as opposed to those who are lawfully admitted to the United States after inspection from a US immigration officer.

The biggest penalty is that, generally, persons who sneak over the US border are not eligible to later adjust their status to a lawful permanent resident (green card holder) whereas, in some circumstances, people who are admitted and inspected but overstay their non-immigrant status can. This becomes particularly important for people who have accrued more than 6 months or 1 year of unlawful presence in the United States because once such persons depart, they are banned from re-entry for periods of 3 years and 10 years, respectively.

Amnesty Programs

Since 1986, there have been several “amnesty” programs for persons without a lawful immigration status residing in the USA. Amnesty is a broad term used to refer to laws that allow otherwise ineligible foreign nationals to regularize their status in the United States. The most recent bill to be passed through Congress was pursuant to the LIFE Act, passed in December 2000, which allowed foreign nationals who were present in the United States as of December 21, 2000 and who had an immigrant visa petition filed on their behalf to obtain lawful permanent resident status (green cards) if they paid a penalty of $1000.00. This is codified in Section 245(i) of the INA.

In 2013, another attempt was made to offer amnesty to additional people with a long physical presence in the United States who passed background checks and paid a $1000 fine. The bill passed the Senate, but not the House of Representatives. In response to Congress’ inability to pass a bill, President Obama issued executive orders to defer action for childhood arrivals and parents of US citizen children who passed background checks. Some of the Presidents’ measures, including the Expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) have been stopped by a federal court judge in Texas, though the case is on appeal in the Fifth Circuit Court of Appeals.

Lacking Lawful Immigration Status

Many immigrants who lack current status – especially children – lack status through no fault of their own. Many childhood arrivals do not learn until they become teenagers and attempt to apply for driver’s licenses, apply to college or seek employment, that they do not have a lawful status. Many of them know no other home besides the United States and speak no other language besides English.

Though rare, a small number of adults are living in the United States without a lawful immigration status and they may not even know it. This comes up in the case of children of diplomats who are born in the United States. Most diplomats are not subject to the jurisdiction of the United States, therefore, under the 14th Amendment of the US Constitution, they are not U.S. citizens at birth because they too are not subject to the jurisdiction of the United States. Unfortunately, these families do not know this and in the case of children who break residence in the United States and later return thinking they are US citizens, in fact, they are not.

Cost of Deportation

Recent studies on illegal immigration statistics estimate approximately 11 million immigrants lack documentation. Why doesn’t the US government simply deport them? The most practical reason is that it is too expensive. Illegal immigration statistics show that it costs approximately $18,000 to apprehend a person, and $3,300 to detain a person for 30 days. Some estimate that it would cost over $200 billion to deport every undocumented immigrant, and the entire requested agency budget for the Department of Homeland Security (“DHS”) for fiscal year 2016 is $41.2 billion.

To put that number in perspective, DHS includes many sub-agencies: the immigration and citizenship agency (USCIS), Customs and Border Patrol (CBP), airport security (TSA), the Secret Service, Immigration and Customs Enforcement (ICE), emergency response (FEMA) and the US. Coast Guard. Funding DHS even for this amount proved challenging this year as political debates over immigration nearly resulted in Congressional failure to fund the agency.

Well aware of its limited resources, DHS focuses it efforts of deportation of criminal aliens and persons apprehended at the border. As of January 1, 2015, DHS has clear directives to first deport convicted felons and terrorists, then those convicted of three significant misdemeanors, then those who are apprehended at the border or have a final order of deportation after Jan. 1, 2014. DHS is also directed to disregard or “defer action” of deportation for those who have US citizen children, or may qualify for an immigration benefit and have no criminal infractions.

Immigration law is always changing, as is the social and cultural response to immigration. Undocumented immigrants are afforded certain rights in America, and deportation or going to jail is not typical for non-criminals. Proposed changes to immigration law may allow people to more easily immigrate to America, but the topic remains complex and politically charged.

If you need help with matters involving immigration, LegalZoom can connect you with an agency that specializes in immigration, including replacement or renewal of a green card, apply for a green card, apply for U.S. citizenship, or apply for DACA (Deferred Action for Childhood Arrivals).