Little Ease: Undocumented in America 2018

Brenda*, a U.S. citizen, and Carlos*, a Mexican citizen, have been married twenty-one years; they live in Washington state, have four U.S. citizen (USC) children together, and have raised Brenda’s severely disabled and wheelchair-bound child, Rose*, now age 27. Carlos is a union member in the construction trades and makes a good living, including health insurance benefits for everyone except Rose.  Brenda doesn’t work outside the home; she is Rose’s caregiver and the family’s homemaker. The family received state-subsidized health insurance for the children until last year, and Rose receives federal Supplemental Security Income and state-subsidized health insurance.

Carlos entered the U.S. without documents in 1996.  His children were always on edge, fearing that one day Immigration and Customs Enforcement (ICE) would find and deport him. But Brenda was in a bind.  If she sought lawful permanent residence status for Carlos as her spouse, he’d have to wait for his immigrant visa in Mexico for at least a year or more while U.S. Citizenship and Immigration Service (USCIS) decided the merits of his application for a waiver of his undocumented presence. Then, if he didn’t receive the waiver, like sixty percent of waiver applicants, he’d spend ten years apart from his family before Brenda could apply again for his residence.

But the Obama administration offered hope for a far less onerous separation when they introduced a new provisional unlawful presence waiver process in 2013. That year, Brenda filed a petition because undocumented immigrant spouses of U.S. citizens could get a waiver approved before leaving the U.S. if they could show the USC spouse would suffer extreme hardship if their partner were stuck outside the U.S. for months or years. Carlos was granted the waiver, and in March 2018 they had saved enough money to begin the third and last step for undocumented spouses of US citizens:  consular process for his immigrant visa, in Mexico.

But in February 2018, the Trump administration changed the rules. U.S. citizen family members seeking legal immigration status at U.S. consular posts overseas were asked to overcome another hurdle. In a far-reaching and restrictive measure to bar legal immigrants, the Department of State instructed U.S. consular officers worldwide to assess whether intending immigrants are likely to use public benefits in the U.S. based on, among other factors, whether their U.S. citizen family members have received government-subsidized health insurance in the last three years, and whether they and their spouses can demonstrate sufficient education and skills to make it unlikely the immigrant will ever receive public benefits.

This is a barrier that Carlos and Brenda can’t get over.  They are one of thousands of mixed U.S. citizen and immigrant couples in Washington State alone who aren’t, and may never be, in the middle and upper income brackets that will pass Department of State’s new public charge inadmissibility standard.

The box is getting tighter and smaller weekly for undocumented immigrants and their U.S. citizen family members.  Like the torturers in the notorious Little Ease room in the Tower of London, where, until it was abolished in the early 1600s, victims could neither stand, nor sit, nor lie down in the suffocating darkness, the Trump administration is squeezing the air out of the small space we have had for the last twenty years for undocumented immigrants to become legal immigrants. Few Americans know that the long, rocky, and steep road to legal immigration for the undocumented, difficult at best since at least 1996, has now become nearly impossible for most U.S. citizens seeking legal status for their spouses.  Marriage to a U.S. citizen has never been a quick or easy path to residence for an undocumented immigrant.  Carlos and Brenda are living proof that our immigration laws and policies are outdated and need reform. They and their children should never be facing the future with such uncertainty.

For Carlos and Brenda, and for many thousands of other couples in Washington State and across the country, this edict is a deadly blow to their dreams of legal residence.  Whose interests can these policies possibly serve?  Not Brenda’s, not their children’s.  If Carlos is arrested, detained, and deported for being in the United States without legal status, who will provide for Brenda and the children?  This war on lower-and middle-income U.S. families must stop, and Congress must call the Trump Administration to account. Let’s hold them to it.

* Names have been changed


For legal strategies and practical tips on family-based immigration, see AILA’s Immigration Law & the Family (Coming Fall 2018).

by Margaret O'Donnell