Administrative Amnesties Create More Problems Than They Solve

An article in the May 24 Boston Globe highlights the problems created when the executive branch tries to make an end run around Congress by using its rule-writing authority to allow illegal aliens to remain here in virtual amnesty, but then cannot deliver the green cards.

The article sympathetically describes how a crooked immigration lawyer in Boston submitted fraudulent or baseless green card petitions on behalf of hundreds of illegal immigrants who are now subject to removal. The lawyer took advantage of a loophole created by immigration policymakers in the Clinton administration in response to the sunset in 2001 of a controversial legalization program known as 245(i). This loophole allowed people to submit what were known as "skeletal" petitions, with little documentation of eligibility for the green card. The petition is the first step in the green card application process, and it was understood that they would not be scrutinized or adjudicated for many years due to the long waiting lists in certain categories. Under the Clinton administration rules, immigration officers were told to approve the petitions as long as the fee was paid, giving these applicants temporary quasi-legal status as a "pending" immigrant, including a work permit.

I know this will shock many people, but some unscrupulous immigration lawyers and others bent on gaming the system seized upon this loophole to submit fraudulent applications. Because the legal immigration process is so back-logged, some of the huge number of bad petitions are only now being discovered and dealt with. Remarkably, the immigration agencies are actually moving to revoke some of the petitions of illegal aliens with suspect applications since they never qualified for a green card. Immigrant advocates are predictably upset, arguing that the crooked lawyers duped the unsuspecting illegal aliens into thinking they were getting a green card legitimately. Interestingly, the advocates don't seem to be upset with the crooked lawyers, just with the government for enforcing the law and preventing unqualified illegal aliens from receiving green cards. New lawyers have stepped in to help the illegal aliens sue in federal court to avoid deportation.

The Obama administration is in the process of implementing a similar loophole for illegal aliens who have married U.S. citizens. By law, an alien who has lived here illegally for more than six months is barred from adjusting to permanent status for either three or 10 years, depending on the length of illegal stay. To get a green card, such an illegal alien has to leave the country to apply, and a U.S. citizen must show "extreme hardship" for the illegal alien applicant to qualify for a waiver from the three- or 10-year bar. This law, which passed in 1996, was meant to discourage prospective immigrants from jumping in line by living here illegally while they wait to be processed. If the law is strictly applied (or even weakly applied, as is the case currently) this means that some illegal aliens have to go home for either a few weeks or 10 years in order to get a green card.

Because it is obviously unacceptable that an illegal alien should be inconvenienced or penalized, the administration has found a way to skirt the law. Under the new rules, such barred illegal aliens will be able to receive a "provisional waiver" of their ineligibility, enabling them to avoid having to travel to their home country and risk possible denial by an immigration official who might be in the habit of applying the law. When the real application is eventually adjudicated, if approved, the alien can travel home just long enough to pick up the immigrant visa. If the waiver or green card is not approved, say, because of fraud, a criminal act, communicable disease, ties to terrorism, or other ineligibilities, no sweat — they can just keep living here illegally. They need not fear removal, because last November USCIS officers received a memo telling them not to act on failed green card applicants unless they are serious criminals.

Like the "skeletal petition" policy, this "provisional waiver" policy is a bad idea, and not just because it is an abuse of executive authority aimed at undermining the laws passed by Congress, as well as a slap in the face to the 4.6 million applicants waiting their turn abroad, and their citizen and legally-resident sponsors who went about it the right way. It also invites more fraudulent applications into a process already riddled with fraud, virtually guaranteeing that many more cheats and swindlers (not to mention possibly terrorists and criminals) will get green cards, and some U.S. citizens will be used and abused for that purpose. But no matter, than can be sorted out after the election.