By Debbie McGoldrick

HAD an interesting letter last week from a woman who has her own concerns about the immigration debate currently taking place on Capitol Hill. Here goes:

“In the current congressional debate about immigration, no one is speaking about the problems that couples here in the U.S. confront when one of them is an unauthorized immigrant. Nor did President Bush mention the necessity to amend this problem of broken families in his address to the nation.

“For example, my boyfriend of six years recently asked my hand in marriage and we’re going to be wed in August. We are thrilled! But our marriage can actually cause us a great deal of problems if he were to then ask for his legal permanent residency.

“Why? As the law stands now, people who don’t have papers are barred, many up to 10 years just because of their irregular status, even if they are spouses or children of U.S. citizens. In the current debate, Senate proposals would remove this punishment for new categories of workers and their spouses and children (as they should), but not in the same way for the spouses or children of U.S. citizens or legal permanent residents.

“Without seeking permanent residency my boyfriend is restricted to a system where he has to constantly hide. He cannot receive adequate medical attention, nor can he get a driver’s license, nor can he visit his family. Even worse, we cannot have children for the fear that one day they wake up and their father is gone because he has been deported.

“For a country that supposedly values the unification of families, this doesn’t make any sense. As opposed to what people think, getting married does not help the process of legalization because of the onerous technical barriers based on overstaying or not having the right visa. The law doesn’t only marginalize our workers, but our families as well.

“In the upcoming weeks, Congress needs to pay attention to the situation that the spouses and children of U.S. citizens and permanent residents face. We need a senator to propose an amendment that would remove the grounds of inadmissibility based on irregular immigration status for the spouses and children of citizens and permanent residents. This is a reasonable approach that only makes sense to the structure of the family unit within the U.S.”

Upon further correspondence with the letter writer, it emerges that her undocumented fiancé entered the U.S. without inspection – i.e., crossing the border without encountering a U.S. immigration official.

As she points out, the bill the Senate will likely approve this week allows for the legalization of the undocumented who entered the country without inspection; such persons (undoubtedly a high percentage of the 12 million undocumented in the U.S.) could avail of the proposed temporary worker program if they are otherwise qualified.

So what gives with those who crossed the border without inspection, and wish to marry a U.S. citizen? As the law presently stands they are ineligible to adjust status in the U.S. the way that those who overstay visas (or a visa waiver) can. The non-inspected immigrant would be subject to the three or 10-year U.S. ban, unless “extreme hardship” could be proved – and in such a case, it’s a difficult goal to achieve.

The letter writer is justified in pointing out that proposed law should also offer the opportunity to legalize for those uninspected border crossers who marry U.S. citizens, a surely tiny number compared to the millions who will have the three or 10 year bans waived if a guest worker program comes to pass.

Just to reiterate, an undocumented resident of the U.S. who overstayed a visa/visa waiver and marries a U.S. citizen is eligible to adjust status after the marriage, and apply for immediate work authorization. The bans are waived in this instance because the person would have entered the U.S. upon inspection.