The Cato Institute recently released “The Green Card Game,” a free, interactive online simulation that allows players to explore the pitfalls of the U.S. immigration system. The lesson of the game is simple: for the vast majority of people around the world, immigrating legally to the US and accessing the path to citizenship is simply impossible. The game’s designers want to educate Americans about our immigration system in hopes that a better-informed public can build a consensus around immigration reform.
A corollary of the myth of how “easy” it is to immigrate legally to the US is the widespread misconception that undocumented immigrants to the US can simply apply for legal status but simply choose not to. Central to the debunking of this myth is the concept of “unverified entry” (“EWI”) and the complex ways in which it limits the life outcomes of about half of the 10-12 million undocumented people residing in this country.
Our immigration system creates two distinct categories of “undocumented” persons, or people without legal status in this country: overstayers and EWIs. Continuing to treat them as a collective group paints too broad a brush because their realities and potential paths to citizenship are so different. The first group—which makes up about half of the undocumented population—enters the country legally after being “vetted” by an immigration officer, but subsequently falls out of legal status by overstaying an authorized period of stay (“overstay”). The other half of that population enters the U.S. without authorization, called “unverified entry” or “EWI.” Overstaying is a simple civil offense, while entering without inspection is a federal offense.
The different treatment of these two groups under existing law cannot be overstated, but it also cannot be more misunderstood. During the primary debates for the 2020 Democratic presidential nomination, nearly every candidate criticized Trump’s separation policy, which uses “zero tolerance” to prosecute all EWIs for their illegal entry and then uses those prosecutions, to justify taking children away from their EWI parents.
Unfortunately, the applicants missed a bigger point: EWI status prevents millions of undocumented people from being able to apply for legal status, even if they have lived in the US for decades and have US citizen spouses and children.
Immigration law penalizes those who entered EWI by blocking most paths to legal status — except in cases involving “extreme hardship” or “exceptional and extremely unusual hardship” for a U.S. citizen or permanent resident immediate relative. Thus, while an overstayer may be eligible to be sponsored by their adult U.S. citizen child, someone who has entered an EWI is generally prohibited. Changing that would require Congress to enact major immigration reform, which last happened nearly 40 years ago.
The failure of EWIs to regulate their status has consequences that most Americans would agree do not make sense. When Americans think about the stereotypes evoked by the pejorative term “anchor baby” and by movies about romantic green card marriages (like “The Proposal”), they fail to appreciate that these legal avenues are only open to half of the undocumented population in this country—i.e. the “stayers”, not the EWI.
What does this look like in practice? A hard-working, law-abiding mother of three US citizen children with over 20 years of residency in this country has little or no hope of regularizing her immigration status because she entered the country illegally. By contrast, her older sister in Guatemala — who lives there with her three children and has never set foot on American soil — can be sponsored to immigrate here by their recently naturalized U.S. citizen mother. Even those who agree that there should be some penalty for illegal entry may very well see the injustice in such a system and see the shades of gray that exist between these two extremes.
Given the harsh penalties associated with the EWI designation, one might ask: if she could turn back the clock 20 years, why didn’t our hard-working mother of three just get in the visa queue to immigrate legally, or come here guest visa and then just stay? Because for almost anyone in her position, there’s simply no queue (and no way to line up). If you come from a less wealthy country, without special work skills or a close relative to sponsor you, you are unlikely to get an entry visa that will allow you to stay outside the country. Your options are to enter illegally – or not to enter at all.
So where does that leave us? Right where we started, ready for another round of The Green Card Game. But maybe this time we’ll play with a better understanding of our often illogical immigration system and a more nuanced appreciation of the plight of our mother of three — and the millions of undocumented people like her — who entered this country without inspection and whose the only chance lies with Congress.
Sheila N. Hare is Clinical Professor of Law at Quinnipiac University School of Law.
Copyright 2023 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten or distributed.