A House of Many Rooms: The Different Paths to Citizenship

by Gary Endelman and Cyrus D. Mehta

It is so refreshingly wonderful to think that what was once unthinkable could become a possibility – a bill to comprehensively reform our broken immigration system. Even  the House Judiciary Committee held a hearing last Tuesday, where there was a willingness to  legalize the 10+ million undocumented population, when in the past the tunnel vision mindset of the GOP controlled House was to find ways to either deport them or make it hard for them to remain in the US. 

The fault line of contention in the debate is whether to grant a pathway to citizenship or not for those who will be able to legalize their status. Many House GOP leaders have stated that they would rather find a middle ground between deporting the undocumented people and providing them with citizenship, which is obviously being opposed by advocates for immigration reform.  Even the Obama White House is opposed to this. For instance, Raul Labrador, a rising GOP leader from Idaho in the House has said that he would vote for providing legal status to the undocumented, but not a green card, which would provide a path to citizenship. The rationale for this is that those who have not” played by the rules” should not be rewarded with a quick path to citizenship. But the underlying motive for denying a path to citizenship is the fear that these new citizens will vote against the Republican  party. On the other hand, Jose Garcia, a Democrat from Florida believes that not providing a path to citizenship would create an underclass in the US, which is not in keeping with American values. He also cites the examples of the French and German systems where immigrants are not allowed to become French or German, and this has resulted in the kind of social unrest in those countries that we have not seen in the US. It is worth noting that the heavyweight Republican from California, Darrell Issa,  has recently backed a path to citizenship. He stated, "Ultimately, if you're allowed to remain in this country permanently, in almost all cases, there should be a path to citizenship. That is what Abraham Lincoln would have said. That's what the Republican Party stands for." 

We too advocate for a path to citizenship in an immigration proposal that will legalize the status of undocumented workers. We also believe that if the GOP provides a path to citizenship, they need not fear losing them as future voters. Many immigrants can be wooed by the GOP as they too share conservative values, and making it through their own enterprise. Elections have consequences and demography is destiny, especially when it comes to politics. Not wanting to remain a permanent minority, or even lose control of the House of Representatives in the next election cycle, even the most stalwart immigrant bashers in the House GOP leadership are suddenly finding religion and coming to terms with the truth on immigration. Any repentance,  however forced or late is coming, should be accepted. Politics is, if nothing else, that most practical of professions.

Still, even under the most liberal proposal, citizenship is not likely to come automatically or even quickly. First, there will be a probationary period of legal status, and after some years, they will be allowed to apply for green cards. After obtaining a green card, one has to wait either five years, or three years (if married to a US citizen) to be able to naturalize. It is hoped that those opposed to citizenship because they believe that people will become citizens the day after a bill is enacted are educated about the long and arduous wait even under a system that provides a direct path to citizenship. A bi-partisan group of Senators also favor a path to citizenship, but have attached conditions before those legalized can obtain green cards, which is that Congress must first be satisfied that the border is under control. This too is being opposed by immigrant advocates and the White House as those in control of this trigger will always find an excuse to say that the border is not under control. 

However much the authors of this blog want a pathway to citizenship without conditions, we also fervently hope that a once in a lifetime deal to reform the immigration system must not break down on the citizenship issue. There can be many other pathways to citizenship, and it is not true that the undocumented who get a legal status will be part of a permanent underclass.We would refute and reject any proposal that would render anyone legalized permanently ineligible for citizenship.First, let’s take a realistic view on how long folks have been waiting under the current immigration system. Many who have met all their conditions to apply for a green card have been waiting under a backlogged family or employment preference category for more than a decade. The India employment-based third preference is so backlogged that an Indian-born beneficiary of a labor certification filed today by an employer may have to wait for 70 years before he or she can apply for a green card!!  With respect to being on a path to citizenship, they have been worse off than an undocumented person who may legalize under a new immigration reform law. 

Thus, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary.The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years. 

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long. Then, there are also few avenues for obtaining a green card. If the GOP refuses to provide a direct pathway to citizenship, or a path to citizenship based on conditions, or even if a direct path to citizenship takes a long time,  let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much!Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.

This post originally appeared on The Insightful Immigration Blog on February 8, 2013.

About The Author

Gary Endelman is a Senior Counsel at FosterQuan, Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at gendelman@fosterquan.com. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.