Who is an Undocumented Immigrant? by Brette Sember, J.D.

Who is an Undocumented Immigrant?

Undocumented or illegal immigrants are at the heart of much debate and controversy as immigration laws are proposed and considered.

by Brette Sember, J.D.
updated January 06, 2021 · 3 min read

There are more than 11.7 million undocumented immigrants in the U.S., according to illegal immigration statistics. Illegal immigration is an area of huge concern for the people living with that status and lawmakers trying to resolve the underlying immigration law issues and make improvements.

Illegal Alien vs. Undocumented Immigrant

The term “illegal alien” has become a politically charged term laced with great stigma. The preferred term is now illegal immigrant or undocumented immigrant.

An undocumented immigrant is in the United States without the legal paperwork to permit him or her to stay. There are many reasons someone might be an undocumented immigrant. Some people are brought to the country as children by their parents without legal immigration.

Some cross the border illegally to work here or to obtain a better life. Others cross the border for illegal purposes. Some illegal immigrants enter the country legally but remain after their visas expire.

Students from other countries enter after obtaining a student visa but then may remain after the visa expires. Many illegal immigrants in the U.S. are technically illegal but are working to obtain legal status. Another class of undocumented immigrants is people who are in the U.S. to seek political asylum.

Deportation of Illegal Immigrants

It seems that it would be simple to have illegal immigrants just removed from the country if they are breaking the law. Many issues make this a complicated problem.

First of all, deportation is costly (it is estimated it costs more than $23,000 to remove just one person from the country). Most undocumented workers are not people up to nefarious deeds.

Many are students, children of undocumented immigrants, or people here with their spouse and children (who are legal) trying to obtain legal status for themselves.

Large numbers of illegal immigrants are in a limbo state. They entered the country legally (under a visa or student visa). The visa has expired, but they have applied for renewal. They aren’t really illegal but aren’t really legal either.

Since they are often waiting for approval of a visa and are not breaking any other laws, deporting them is often seen as an unnecessary expense.

Some immigrants stay when their visas expire because if they leave, they could be denied re-entry. Immigrants who have been in the country unlawfully for more than 6 months can be barred from re-entry for three years.

Those who have been undocumented for a year can be barred from re-entry for ten years. If an immigrant lives in the U.S. with a legal spouse and children, this reentry bar can be very harsh, and thus it often makes more sense in the immigrant’s eyes to stay and try to resolve the immigration status from inside the country.

Amnesty for Illegal Immigrants

Amnesty for illegal immigrants is a hot button issue and one that has been approached in many ways over the years. Deferred Action for Childhood Arrivals (DACA) has been in place since 2012 and was expanded in 2014 but is undergoing a court challenge (the original law remains in effect, but the expansion has been suspended).

The older and currently applicable law applies to anyone under age 31 who came to the United States while under the age of 16 and has resided here without leaving since 2007. A person who meets those requirements and is in school has completed high school, or has been honorably discharged from the military can be granted what is called “deferred action.”

Deferred action does not make the immigrant legal but places them on deferred status, during which they are not actively deported.

The DREAM Act is a piece of legislation that has not yet passed, which would legalize millions of undocumented immigrants under age 30, arrived in this country when they were under 15, and have obtained a GED or high school diploma. This act has proven controversial and is still being debated.

There are many explanations for why a person may be an undocumented immigrant and a variety of bars to obtain legal immigration status. Immigration law is one of the most controversial social policies being debated in the United States.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more