“inadmissible” and barred from returning for three years; anyone with more than twelve months of “unlawful presence” is barred for ten years. If you can prove that your absence will cause your U.S. citizen spouse to suffer “extreme hardship,” you can apply for a “provisional unlawful presence waiver” that may allow you to return to the United States sooner. Starting in 2013 people married to U.S. citizens could apply for this waiver while remaining in the United States.42
Is it ever easy to get a green card?
If you entered the United States with a valid temporary visa but overstayed it, you might be able to get permanent residency through family ties or employer sponsorship. If you overstayed more than 180 days, you’d technically be subject to the three-year or ten-year bars, but if you’re married to a U.S. citizen you can generally avoid the bars by adjusting your status in the United States.43
Still, getting a green card is rarely easy, even for immigrants who haven’t overstayed their temporary visas. Any encounter with the immigration bureaucracy is likely to be plagued with obstacles and frustrations.
Many people believe that getting a green card through marriage is just a matter of filling out a few forms and answering a few questions—as long as the relationship is legitimate. But the way the government looks at it, the burden is on you—the applicant—to prove your marriage isn’t fraudulent. You and your spouse are expected to get a joint checking account, pay taxes jointly, and have bills and leases in both your names, among other steps (even though not all married couples routinely do these things).44 The whole process from marriage to green card generally takes at least ten months if you’re married to a U.S. citizen, but it can take longer. The process is much longer if the spouse sponsoring you is a permanent resident rather than a citizen.45
Before July 1, 2013, there was no way for a U.S. citizen to sponsor a same-sex spouse. After the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in June 2013, the administration of President Barack Obama changed its policy and instructed federal employees “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”46
Getting an employer to sponsor you for permanent residency is especially complicated, and can often take more than five years. Employers are frequently reluctant to go along with the tax and salary requirements involved and prefer not to admit they’ve been hiring out-of-status workers. Before your file even gets to the immigration agency, the Department of Labor must certify that your employer tried unsuccessfully to find U.S. citizens or permanent residents who could do your job.47 Although discrimination on the basis of national origin is illegal in the United States, a 2014 study of approval rates for labor certification petitions found significant disparities based on the nationality of the prospective employee, even when other factors like skills and experience were the same.48
What about the “anchor babies”?
Children born in the United States are U.S. citizens, even if their parents are out-of-status immigrants. Opponents of immigration like to call such children “anchor babies,” implying that immigrant parents use their U.S.-born children as a way to establish themselves here. In July 2010 Senator Lindsey Graham (R-SC) claimed on Fox News that unauthorized women come to the United States simply to “drop and leave” their babies.49
Most citizen children of undocumented immigrants are actually born some time after their parents have settled in the United States, according to a study of babies born to immigrants from March 2009 to March 2010. Just 9 percent of the out-of-status parents had arrived in 2008 or later; most had been in the United States for a number of years when the babies were born—30 percent had arrived between 2004 and 2007, and 61 percent arrived before 2004. For its October 2006 survey, Bendixen & Associates asked undocumented immigrants to give their reasons for migrating to the United States. The respondents overwhelmingly cited work opportunities; having “anchor babies” didn’t even rate a mention.50
In any case, having a U.S. citizen child doesn’t help undocumented immigrants gain legal status, or even protect them from deportation. U.S. citizens have to be at least twenty-one years old to sponsor their parents for legal residency. Each year, thousands of people who have U.S.-born children are deported, leaving families shattered. A 2012 study by the New York University School of Law’s Immigrant Rights Clinic found that 87 percent of New York City immigration cases involving parents of U.S. citizen children between 2005 and 2010 ended in deportation.51
Before 1996, out-of-status immigrants could sometimes win “suspension of deportation” by proving that they had lived in the United States for seven years and had good moral character, and that their removal would cause “extreme” hardship to themselves or to a family member with legal status. But IIRIRA, the 1996 immigration law, changed the rules. To be granted what is now called “cancellation of removal,” applicants must prove they have lived here for ten years with good moral character, and their deportation would cause “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident parent, spouse, or child. It’s very difficult to meet the hardship criteria: a child who is separated from a parent clearly suffers hardship, but the situation is not necessarily exceptional or extremely unusual. When such cancellation is granted, it usually goes to an immigrant parent who is the primary caregiver for a U.S. citizen child suffering from a severe, life-threatening medical condition.52
The 1996 law also set a limit of 4,000 on the number of people who can be granted this particular type of cancellation in any given year—not counting permanent residents seeking to reverse deportation orders, who are counted separately and are not subject to the cap. Complicated rules designed to prevent judges from granting more than 4,000 cancellations in any given year have resulted in a backlog of decisions.53
BIRTHRIGHT CITIZENSHIP
Some countries base citizenship on family heritage, but the British colonies followed English common law in automatically making people citizens of the place where they were born. The newly formed United States continued to recognize birthright citizenship; the Supreme Court assumed it as the basis for an 1804 decision.
However, women didn’t have full citizenship until they won the right to vote in 1920, and many states originally denied voting rights to citizens without property. Slaves were denied citizenship altogether, and until 1870 only white immigrants were eligible to naturalize as citizens. The situation was more complicated for free native-born people of color: in most states they had limited citizenship, without the right to vote; at the time of the Civil War free men of African descent could vote in only six of the thirty-four existing states. Some Native Americans, but not all, were recognized as citizens in treaties with the federal government. In 1848 the Treaty of Guadalupe Hidalgo mandated U.S. citizenship for all Mexicans living in the southwestern territories taken from Mexico in the Mexican-American War.54
With the 1857 Dred Scott decision the Supreme Court ruled that birthright citizenship only applied to white people. The Fourteenth Amendment, ratified in 1868, specifically redressed this injustice by restoring birthright citizenship without reference to race or ethnicity. The Supreme Court upheld the principle in 1898 in the case of the Chinese-American citizen Wong Kim Ark.55
Conservative legislators like Sen. Graham and former Arizona state senator Russell Pearce have proposed amending the Constitution or finding some way to circumvent the Fourteenth Amendment so that children born in the United States to out-of-status immigrants would not be U.S. citizens.56
Revoking birthright citizenship might leave many children born here stateless, since their parents’ countries
