Late in the evening of April 20, 2020, President Trump announced by Tweet that he…
There you are again – the interminable TSA line at the airport. All that stands between you and a Hawaiian vacation is this snaking queue of grouchy travelers.
You notice that it’s all families in this line. Obnoxious, smooching newly-weds. Dads with operatic babies in tow. Siblings off to a family reunion. You’re all going to be stuck in this line for a good, long time.
In the U.S. system, most immigrants are stuck in a similar, long queue made up of families. The vast majority of immigrants gain legal residence through family-based petitions. The smooching newly-weds have it relatively easy. They might be in line for just six months to one year. But those siblings? They’ve got it rough. They might be standing around, stomping their feet, for twenty years or more. Which makes even a TSA line seem humane.
Peering through the crowd of coach travelers, you can see the much shorter line for first class. There, it’s all suits and briefcases. You smugly note that the other line really isn’t moving all that fast, either. Must be a staffing issue with TSA.
Employment-sponsored immigration is like that shorter TSA queue. These matters account for a much, much smaller percentage of new residents. Only a very limited number of scenarios present a viable employment-based immigration strategy. The process is going to be long and – for the U.S. employer – very expensive. And again, only a tiny fraction of foreign nationals have even a potentially viable strategy.
Past the first class travelers is the privately-operated “Clear” lane. Almost no one is in that line. The few that are have shelled out some cash to buy their way into the fast lane. As you inch forward, you wonder how much it costs.
The immigration equivalent is our EB-5 investor program. Foreign nationals shell out $500,000 or one million dollars to jump into the residency fast lane. It’s basically as good as it sounds – if you’ve got the cash, you can hop in line.
Looking ahead, you can see the indignities that await. Shoes come off. Full body gets scanned. An intrusive pat-down by hand. Randomly-selected travelers get whisked away to a special room for an even more invasive, glove-assisted examination behind a privacy screen. Some seem to stay there a really long time.
So too would-be U.S. residents. All will be going through a detailed security check. They will face medical screening where their medical history, mental health, and genitalia will be examined. They will interview with a State Department officer who will decide their future from the other side of 4-inch bulletproof glass. As you probably already guessed, it’s not a particularly fun process. Any sort of security flag puts a case at risk of falling into the black hole of administrative processing, where it bounces around for years between an alphabet soup of agencies.
Next to the main TSA screeners, a side door occasionally opens to let in one or two people at a time. These, you realize, are the folks staffing the restaurants and kiosks in the terminals. Oh, for a cup of coffee! You’ve heard about what folks go through to land these minimum wage jobs. That young woman with the hijab probably went through months of security screening before she could finally start working.
In immigration law, there are a handful of humanitarian avenues to residency, such as for refugees, crime victims, and survivors of human trafficking. These options are few in number, and available on narrow fact-specific scenarios. As most have heard following coverage of the Travel Bans, refugees face extraordinarily tough security screening. Lengthier even than for other immigrants.
Grumble as you might about TSA, you do understand how fortunate you are to travel in the first place. Sure, the line sucks. But soon enough you’ll grab a latte and head over to the North Satellite – then it’s off to Honolulu! Not bad. Thinking back to your drive to the airport, you can picture the faces of people who won’t get a hot coffee today, much less a beach holiday.
And therein lies the critical analogy.
Only a privileged, tiny sliver of humanity will ever have a chance to stand in line for U.S. residency, regardless of how badly they want it. For most would-be residents, there just is no line.
If you don’t have a qualifying family member, you’re not even getting in the coach line. If you’re not in that tiny cadre of employer-sponsored professionals, then forget about the first class queue. Don’t have a million bucks lying around? Forget about the Clear lane. And just because life in your country is tough – even hellish – doesn’t mean you meet stringent criteria to pass through the refugee door. Sorry.
Eventually, the analogy breaks down. Almost anyone can ultimately score an airline ticket with sufficient bloody mindedness. But a foreign national, no matter how tenacious they are, will into existence the facts needed to support a U.S. residency strategy. Tenacious or not.
As of the time of writing, the Trump Administration is again flirting with the idea of canceling Deferred Action for Childhood Arrivals. DACA, of course, is the program that has granted limited work authorization to over 800,000 youth who were brought to the country illegally as children. We often hear the refrain that these youth, and other undocumented people, should simply get in line and pursue residency though lawful channels.
But there is no line.
There are reasonable and compassionate arguments on all sides of the immigration debate. But voters – and especially lawyers – should not fool themselves about the status quo. The baseline includes millions of undocumented people in the United States who have zero legal strategies available to them. To them, simply being able to face the indignities of a TSA screening remains a dream.