The question of what to do about the 11 million U.S. unauthorized immigrants flared up again in one of last month's Republican presidential candidates' debates. Former House Speaker Newt Gingrich initiated the fireworks by arguing that it would run afoul of U.S. values, as well as the pro-family aspirations of the Republican Party, to deport long-term, tax-paying, unauthorized residents with strong U.S. family and community ties. Former Gov. Mitt Romney countered that Gingrich's idea would open "a new doorway to amnesty," allow unauthorized people "to jump ahead" of those who have been waiting for legal admission, and provide "a special accelerated right" to U.S. citizenship. On the latter point, Romney has been consistent. In a 2007 Meet the Press interview, he likewise decried "a special pathway" or "guarantee" of legal status to persons "merely by virtue of [their] having come here illegally." But how does this statement distinguish Romney from his opponents?
The recent comprehensive immigration reform proposals, derided by Romney and the other Republican candidates, would have allowed certain unauthorized immigrants to earn legal status over many years and only after visa backlogs were cleared. Moreover, a sizable percentage of the U.S. unauthorized immigrant population -- those whose visa petitions have been approved based on a qualifying family relationship to U.S. citizen and lawful permanent resident -- have been waiting in line for legal admission for years. They do not seek a special pathway to status, just an improved one.
Recent estimates by the U.S. Department of State on the number of persons with approved family-based visa petitions but who have not yet received them, has fluctuated between 3.4 and 4.9 million. Most of these persons have opted to live in the United States (without status but with their family members) as they wait for their visa "priority dates" to become current. Depending on the country of nationality and the category of family relationship, waits can span years and even decades. After this time, qualified family members must apply for a visa, typically from outside the United States. However, if they leave the country, they face bars to readmission, a waiver process that requires months of additional waiting, and no guarantee that they will be allowed to return. Needless to say, this system provides a significant disincentive to taking the next step in the visa process or even initiating this process at all. Congress could reduce waiting times and allow eligible family members to apply for permanent residency in the United States. The Obama administration could take more modest steps to improve the process without Congressional action. Either course would satisfy Gingrich's pro-family concerns, without running afoul of Romney's opposition to a "special pathway" to status. Both would strengthen US families and promote legality.
Gingrich's position need not open a "new doorway" to legal status. Ever since the United States first adopted quotas on immigration in the 1920s, Congress has allowed very long-term residents "to register" for legal status. Between 1929 and 1986, it advanced the admission cut-off date for registration several times. Under current law, unauthorized persons, with good moral character, who have been continuously present since January 1, 1972 can apply for legal status. Congress could move forward the registry date yet again, perhaps requiring 20 years of continuous residence, rather than the nearly 40 years currently required. Such a measure, offering the very remote possibility of status decades in the future, would not attract a "new wave" of illegal immigration. The strength of the economy -- in migrant sending countries and in the United States -- will have a far more substantial effect.
In most contexts, Gingrich's statement would have been affirmed as a matter of basic decency. Yet in the hotly-contested Republican presidential race, only weeks before the Iowa caucus, it drew predictable fire as an affront to "the rule of law." Of course, laws must be enforced, and the latest evidence of record immigration enforcement came with last week's announcement that Border Patrol apprehensions -- a rough measure of illegal crossings -- have fallen to levels not seen since 1972. Yet the rule of law also requires laws that respect fundamental rights (like family unity), and effective, judicious, and fair enforcement of these laws. This concept provides scant support for deporting long-term pillars of the community or for propping up barriers to legal status for persons who have been found prima facie eligible for family-based visas. On this modest point, perhaps Gingrich and Romney may ultimately be able to agree.