Current immigration laws do not provide U.S. citizens or employers with a viable pathway to sponsor their undocumented family members or workers for lawful permanent residence, even if they would otherwise be eligible for a green card, if those individuals entered the United States without inspection and are still living in the country. Undocumented immigrants must first leave the country and apply for an immigrant visa at a consulate abroad. But once they leave, they face a lengthy ban on returning due to a cruel Catch-22 law put in place in 1996 that subjects anyone who was in the United States without legal immigration status for more than six months to a reentry bar of three or 10 years. This makes getting a green card effectively impossible for millions of people who should have a legal pathway to do so.
As Congress and the Biden administration move to create a more fair, humane, and workable immigration system, they should use every avenue possible to put undocumented immigrants on a pathway to legal status. This includes reinstating the Legal Immigration Family Equity (LIFE) Act and eliminating the three and 10-year bars to entry. These changes would allow as many as 2.3 million immigrants who are married to U.S. citizens or green card holders or have employers who could sponsor them to apply for a green card. Historically, these solutions have had bipartisan support and would reduce barriers for people to apply for legal status, which is currently inaccessible to them due to the bars on reentry.
Glossary
Entered without inspection: When noncitizens enter the United States without applying and presenting themselves before an immigration officer at a port of entry, they are said to have entered without inspection.
Overstayed a visa: A noncitizen is said to have overstayed a visa if they were lawfully admitted but remained in the United States beyond the authorized period. If a visa overstayer is an immediate relative of a U.S. citizen or a lawful permanent resident, they can apply for adjustment of status from within the United States without being affected by the bars.
Three- and 10-year bars: These bars, included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, prevent undocumented immigrants who leave the United States from returning for specified periods of time. If someone accrues more than 180 days but less than one year of unlawful presence, they are barred from reentering for three years. If someone accrues one year or longer of unlawful presence, they are subject to a 10-year bar. If individuals can prove “extreme hardship,” among other requirements, they can apply for a provisional waiver that is “precleared” in the United States, allowing them to depart the country to get their visa without triggering the reentry bars. In 2016, U.S. Citizenship and Immigration Services (USCIS) published a new policy guidance that opened up the process to a larger group and clarified how it would adjudicate cases.
Section 245(i) of the LIFE Act: A temporary provision that allowed immigrants who entered the United States without inspection to pay a penalty fee to adjust their immigration status via family and employment-based visa petitions, filed between January 15, 1998, and April 30, 2001, without leaving the country and triggering the reentry bars.
The legislative history of the LIFE Act and reentry bars
Section 245(a) of the Immigration and Nationality Act (INA) sets the eligibility criteria for adjustment of immigration status. Among other requirements, applicants must have been inspected and admitted into the United States; hold lawful status, with exceptions for immediate family members and visa overstayers who entered with inspection but have no legal status at the time of application; and have a visa available to them. In 1994, Section 245(i) was added to the INA as a temporary provision intended to alleviate burdens on consular offices overseas. It allowed eligible individuals to receive permanent resident status without first leaving the United States and without having to satisfy the inspected and admitted provision of 245(a). The creation of the three- and 10-year bars in 1996 increased the significance of 245(i), as the bars had harsh consequences for undocumented persons who left the United States.
The 245(i) provision enjoyed broad bipartisan support. Early on, it eased the workload of U.S. consulates, and after the reentry bars were instituted, it provided a way to keep families together. In 1997, during the Clinton administration, Republican majorities in the House and Senate extended the provision three times. In 2000, a divided Congress extended Section 245(i) through the LIFE Act. The provision was extended for the last time in 2001 and had strong support from then-President George W. Bush, who said that it “recognize[d] the importance of families” and that the reentry bars forced undocumented immigrants to stay in the United States without status to avoid separating from their families.
The 245(i) provision expired in 2001 and has not been extended by Congress since. However, in 2013, the Obama administration lowered the risk of triggering the three- and 10-year bars by issuing a rule called the provisional “stateside” waiver. This rule allowed eligible undocumented family members—and as of 2016, applicants from all immigrant classifications—to travel abroad for their green card without triggering a bar.
Reinstating 245(i) and eliminating the three- and 10-year bars could provide a much-needed solution for many undocumented immigrant family members of U.S. citizens and legal permanent residents, as well as immigrant workers. According to the authors’ analysis, there are as many as 2.3 million undocumented immigrants in the United States who have a U.S. citizen or legal permanent resident spouse or an employer who may be able to sponsor them for a green card. 1.4 million people have a U.S. citizen or permanent resident spouse, and 1.1 million may have such an employer. This estimate does not include eligible undocumented parents of unmarried U.S. citizen children ages 21 or older who can petition for them. (see the Methodology below for more information on data limitations)
Congress should work together to pass these commonsense measures
Over the years, there has been bipartisan support for eliminating the three- and 10-year bars. Former and current members of Congress including Rep. Raul Labrador (R-ID), Rep. Bob Goodlatte (R-VA), Sen. Elizabeth Warren (D-MA), and Sen. Bernie Sanders (D-VT) have supported repealing or reforming the bars. Recently, Sen. Catherine Cortez-Masto (D-NV) introduced the Fairness for Immigrant Families Act, which would eliminate the bars and reinstate Section 245(i). President Joe Biden also proposed eliminating the bars in his comprehensive immigration reform bill, the U.S. Citizenship Act of 2021.
The reinstatement of the LIFE Act or elimination of the three- and 10-year bars, or both, should be part of any legislative solution for immigration, either on their own or as part of a commonsense package that puts undocumented immigrants—including Dreamers, Temporary Protected Status (TPS) holders, and farm and essential workers—on a pathway to citizenship. Reinstating Section 245(i) of the LIFE Act alone would allow eligible people to process their application without leaving the country and triggering the bars.
Conclusion
Ms. Cabrales feels stuck because her husband’s immigration status prevents them from fully building their lives in the United States. Adding that her husband works in construction, supports her, and pays taxes, she remarked, “I am a U.S. citizen and I want to help my spouse … it [the U.S. immigration system] is just not letting us.” Reinstating the LIFE Act, which would allow people like her husband to apply for his green card without leaving the United States, and removing the reentry bars, which would not penalize him for leaving the country, would go a long way toward ensuring that the Cabraleses and millions like them can build a secure future and follow their aspirations.
* Ms. Cabrales, phone interview with author, Kansas City, Missouri, May 21, 2021.
Silva Mathema is the acting director of the Immigration Policy team at the Center for American Progress. Nicole Prchal Svajlenka is an associate director for research on the Immigration Policy team at the Center. Sofia Carratala is the research assistant for Immigration Policy at the Center.
The authors would like to thank Gregory H. Siskind and Lily S. Axelrod from Siskind Susser PC for providing their expertise; Gregory Z. Chen from the American Immigration Lawyers Association and Angela J. Ferguson from Austin & Ferguson, L.L.C. for their help; and Ms. Cabrales for sharing her story.
Methodology
Estimates of the population who may be eligible for legal permanent residence if 245(i) is reinstated or if the three- and 10-year bars are eliminated are based on CAP’s analysis of 2018 and 2019 one-year American Community Survey (ACS) microdata, accessed through the University of Minnesota’s IPUMS USA database.
The size of this population is difficult to estimate due to certain limitations within ACS data. First, the ACS does not ask individuals about their immigration status. Using a series of edits—based on characteristics such as year of arrival in the United States, country of birth, occupation, and certain family relationships—the authors identified records of people they believe are likely to be undocumented. Additionally, researchers using ACS data cannot identify how many of the 2.3 million immigrants were undocumented because they overstayed a visa and how many were undocumented because they entered the United States without inspection. Researchers also cannot identify who is eligible for employer sponsorship or whether a visa would be available to them immediately. In an effort to match USCIS guidance on typical requirements for employment-based visa categories, this analysis counts as eligible for employer sponsorship undocumented immigrants who are employed but not self-employed and those who have received a bachelor’s or advanced degree. These categories include an overlap of almost 200,000 people; thus, the total does not equal the sum. Lastly, because the data only show family relationships for individuals living in the same households, the analysis cannot capture people who may be eligible—for example, parents of U.S. citizens who are themselves adults—who are not living with a family member who could sponsor them.