A Loophole in Immigration Law

By Steven A. Camarota and Jessica M. Vaughan on October 21, 1997

The Washington Post, October 21, 1997

Just a year after Congress overwhelmingly passed a landmark bill aimed at curbing illegal immigration, it is poised to approve a loophole that renders one of the 1996 law's most important reforms meaningless.

The provision in question is section 245(i) of the Immigration and Nationality Act, which allows illegal aliens to undergo visa processing (i.e., receive a green card) in the United States, provided they pay a fine of $1,000. Until a few years ago, most of these individuals would have been required to apply for a visa in their home country. This controversial provision was scheduled to sunset on Sept. 30. However, at the beginning of the month, after a flurry of media coverage and intense pressure from interest groups, Congress extended it for 23 days and is considering extending it permanently.

By definition, all of the beneficiaries of 245(i) are illegal aliens. Proponents of high immigration have taken pains to describe them as "almost legal" or "on track for a green card." While it is true they have approved petitions from sponsors, giving them permission to apply, this is not the same as being approved for a green card. Their applications have yet to be screened for criminal and medical history, the likelihood that the applicant will become dependent on welfare or other disqualifers.

The sunset of 245(i) is necessary in order to activate a powerful enforcement tool passed last year. Anyone who as been in the United States illegally for at least six months can now be barred from reentering legally for either three or 10 years, depending on how long they were here illegally. In the past, illegal aliens could apply for permanent residence without penalty, even if they had been violating the law by living in the United States for years. If 245(i) ends as scheduled, any illegal alien who aspires to a green card will have to return home within six months or be subject to the new bar. The three-year/10-year bar was passed specifically with the sunset of 245(i) in mind. If 245(i) is extended, illegal aliens are shielded from the bar, rendering it meaningless.

The advocates of extending 245(i) argue that because these individuals are already here, there is little point in forcing them to return home for their visa processing. Beyond the disregard for the rule of law that this view represents, it is also troubling because it fails to appreciate the message it sends to those overseas who are considering entering the country illegally.

Illegal aliens are in effect being told that they may come whenever they want and stay illegally for as long as it takes until they get a visa. In fact, according to a recent analysis by the Immigration and Naturalization Service (INS), last year roughly 25 percent of legal immigrants were 245(i) recipients - about 230,000 individuals. What's more, the State Department estimates that perhaps 1 million people on visa waiting lists are residing in the United States illegally. Clearly, such a system encourages illegal immigration.

In addition to contributing to illegal immigration, 245(i) has other problematic aspects. The program creates a potential conflict of interest for the INS. In fiscal year 1996 the INS collected roughly $200 million in fines from 245(i) recipients. Thus, the INS is in the awkward position of arguing that illegal aliens should be allowed to stay because the agency needs the money their fines generate.

What's more, what does the 245(i) program say to those who are playing by the rules and patiently waiting their turn to come to the United States? This is the immigration policy equivalent of the Redskins ignoring the waiting list for season tickets and allowing anyone who manages to sneak into Jack Kent Cooke Stadium to stay and watch the game from whatever seat they can find, provided they pay a $50 fine.

There is also the question of which agency can best process visa applications. Recently the blue ribbon Commission on Immigration Reform recommended that the State Department take over all visa functions from the INS. State Department personnel abroad know the local languages and customs and are in contact with local authorities. Thus, they are far better equipped to evaluate visa applications than the INS. Moreover, allowing people to apply for visas from within the United States makes any effort to keep out those who are found ineligible, such as criminals, totally ineffective because even if their applications are denied their chances of being deported are slim.

Clearly, any policy that results in more illegal immigration should be carefully considered. There are now about five million illegal aliens living in the country, with 400,000 more settling each year. Ample research indicates that the presence of illegal aliens depresses wages for other workers who are forced to compete with them for low-wage jobs. Also, illegal aliens work disproportionately in the underground economy and hold low-wage jobs, and thus typically pay very little in taxes - yet, they use such costly taxpayer-provided services as education, public hospitals and the criminal justice system.

The upcoming decision on section 245(i) is ultimately about whether Congress places a higher value on the convenience of illegal aliens or on effective and fair immigration enforcement.