"Jumping the Line:" Paths to Permanent Residence and U.S. Citizenship

• In Event: Authorized and (Un)Recognized: Non-citizens and the Undocumented

Abstract

A frequent trope in debates over immigrant legalization is that any program to provide legal status for unauthorized immigrants would put the unauthorized immigrant at an advantage over potential immigrants not yet in the United States who had followed the rules, applied for legal permanent residence under established procedures, and waited for their application to be reviewed. In more crass terms, an argument is sometimes made that legalization would allow immigrants to “jump the line” and receive a benefit (permanent residence and potentially U.S. citizenship) that those who had followed the rules were still being denied. This strikes many who make this argument as profoundly unfair and rewarding rule breakers in such a way as to undermine the legitimacy of the U.S. immigration system and the symbolic value of U.S. citizenship. Such an argument misunderstands many aspects of U.S. immigration policy. A careful reading of U.S. immigration history shows that even though the United States has had a statutory line to naturalization and citizenship from its earliest days, Congress has repeatedly added to the line, skipped over the line, and altered the direction of the line. It continues to have the power to make similar changes today. Where it to adjust and add to the line today to provide a pathway to legal status for long-term residents of the United States who do not have legal status, it would be following its own (and the nation’s) long-term traditions.

The rhetoric of an established line that defines those potential immigrants who have followed rules and those who have not fails to recognize that the rules and policies guiding U.S. immigration have always been in flux. The principle that guided the centralization of authority for naturalization in the federal government reflects a recognition by the Founders that naturalization (and, by extension, immigration) was central to the ultimate health, size, and power of the United States. Congress, both through Constitutional amendment, treaty, and statute, as well as the courts, have recognized this principle as well by steadily expanding opportunities for immigration and naturalization and by linking much of the nation’s immigration to the opportunity to naturalize. These expansions have certainly come in fits and starts, but until the contemporary era, Congress has generally used its powers to remedy problems in immigration – particularly of immigrants in the United States who are outside of the scope of immigration laws – through a path to legal status and U.S. citizenship.

As with many aspects of U.S. immigration policy, these targeted expansions to the “line” that is established in immigration and naturalization law have stagnated over the past fifteen years. Three efforts to craft comprehensive immigration reform have failed in Congress (twice after passage in the U.S. Senate). Each of these bills would have included changes to the paths to legal immigration as well as opportunities to regularize the status of long-term unauthorized immigrants. There have also been more targeted bills to regularize the status of the DREAMers. The proposed changes to the paths to legal immigration in these bills are modestly more restrictive, but in no case do they establish an overall cap on legal immigration or a significant move away from the preference for family migration that has characterized U.S. immigration law since the 1960s. This balance that rejects a zero-sum approach to U.S. immigration opportunities is certainly grounded in the history presented here. Whether or when Congress will find the fortitude to maintain this balance is not clear. What is clear, however, is that the principle that the nation’s ultimate health, size, and power is dependent on immigration remains. Congress will continue to feel pressures from both the economy and from U.S. citizen relatives of immigrants and potential immigrants to ensure that many lines remain to immigration and U.S. citizenship.

In this paper, I analyze the Constitutional, treaty-based, statutory, and judicial adjustments – largely expansions – to the line that establishes legal permanent resident status and U.S. citizenship. After identifying these many of the new paths that have been established over the course of U.S. immigration history, I offer some assessment of the patterns of line creation in American immigration history and paths that Congress can follow as part of immigration reform efforts.

Author

• Louis DeSipio, University of California, Irvine