Diana Jimenez, 2, as she sleeps in a stroller during a rally sponsored by local immigrant rights organizations, in Homestead, Fla. Jimenez’s father was deported to Guatemala two years ago leaving Jimenez and four siblings in the U.S. (AP Photo, File)

The debate over President Obama’s executive action on immigration once again reveals a deep disconnect in the understanding of how legal and illegal immigration are linked. “Just enforce the law,” demand frustrated critics. To a great extent, we have.

But the law is part of the problem. Tens of thousands of regulations sit atop a creaky, aged legal architecture that has failed to keep pace with the economic needs of the country and betrayed the goal of unifying families.

Ours is a system of many legal detours, cul-de-sacs and dead-ends. A straight path is hard to come by. What is true for the immigrant who illegally overstayed on a visa is not automatically true for the immigrant who illegally crossed the border. Given the law’s complexity, it’s not surprising that misconceptions about what it does and doesn’t do are rampant. It remains a popular belief, for example, that those who came here illegally were presented with the choice of applying for a visa – the vaunted line — but, for whatever reason, chose not to.

That assumption tops today’s “Four ways our current immigration policy feeds illegal immigration.”

  1. The line we don’t have. We have no visa category for year-round, full-time, low-skilled work. That foreign construction worker, landscaper, cook, hotel maid working, has no line to get behind.  For the most part, employers can only sponsor low-skilled workers on a seasonal or temporary basis with strict rules and caps. So, Vail, Colorado can hire foreign hospitality workers during ski season, but Denver can’t hire foreign hospitality workers year-round. And once someone has lived in this country without legal status it is almost impossible to gain or regain that status. “There is no such thing as ‘Just fill out the forms,’” says Denver immigration attorney Joy Athanasiou. “The overwhelming majority of individuals without status don’t qualify at all and the positions with real shortages have no legal avenue.”  With no legal routes, millions take the illegal one, lured by the promise of a job that pays in one day what it could take a week to earn back home.
  2. The line we do have. Our immigration system is primarily family-based. It prioritizes spouses, minor children, parents, then moves to adult children and siblings. This is the “chain migration” under much Republican scrutiny. The wait largely depends upon familial relationship, whether the sponsor is a citizen or lawful permanent resident – a green card holder. In some cases, demand far exceeds the supply. For example, says Washington, D.C. attorney Prerna Lal, the number of visas available to the unmarried adult sons and daughters of lawful permanent residents – green card holders – from the Philippines is 1,838. The number of pending applications is 50,298. It would take 27.4 years to clear the backlog. The entire backlog is more than four million people deep. Many of those waiting are the spouse and children from the Reagan amnesty in 1986.   “We have an archaic system that creates backlogs that are impossible to overcome,” Lal says. Waiting children become adults who must enter a new line. Adults live out their prime working and earning years waiting for their visa numbers come up. Sometimes they die waiting. Sometimes they get here any way they can.
  3. The other lines. We’ve long imposed quotas on how many foreign workers U.S. companies are allowed to import and under what circumstances. It makes sense on its face. Domestic workers who possess the necessary skills should receive priority in hiring. But the quota system has nowhere near the nimbleness the market requires and the caps are unconnected to the actual needs of employers. These are the lines for those seeking permanent employment-based residency, as well as for temporary work visas for highly-skilled workers, temporary and seasonal workers and a smaller category for unskilled workers seeking permanent residency. Only 10,000 of this last category of visas are available world-wide. As with family-based visas, demand for employment-based visas in most categories outstrips supply, setting up backlogs decades-long. The spillover into illegal immigration is most closely seen in agriculture: farms, orchards, dairies. There are, in fact, jobs Americans won’t do, not at eight bucks an hour, not at $18 an hour. Somewhere between one-half to two-thirds of all farm workers in the United States don’t have lawful status, Athanasiou says.  Between hiring regulations and much tougher border enforcement, labor shortages have been commonplace. “No workers, no food,” Athanasiou says. “If we enforce the law as it stands now, we will have to import most of our food.”
  4. The punishments that backfired. In 1996, penalties were put in place to deny admission and residency to those who entered the country illegally and then stayed here. These punishments impose bars on gaining legal status and trigger the moment someone who has been here illegally leaves the country. They can last anywhere from three years to forever – a permanent ban. Waivers exist, but not everyone qualifies and getting one can often seem like an expensive crapshoot. The early effect of the bar was to discourage historic migration of workers.  Rather than going home to see the family, many just brought their families here. The ongoing effect has been in the rise of mixed-status families. If a U.S. citizen marries an immigrant who crossed the border illegally, that immigrant must return to the home country to be processed. The moment he or she leaves the country, the bars trigger. The immigrant spouse can be denied legal entry, leaving a family with the choice of living apart or living together in the spouse’s often-poorer country. Many families just won’t take the chance of separation. They just remain mixed-status families. “It makes no sense and Republicans and Democrats are saying we should end the bars,” says Greg Chen, the director of advocacy for the American Immigration Lawyers Association. “These are people who could have legal status but for the problem with current law.”