The Cato Institute recently released “The Green Card Game,” a free interactive online simulation that allows players to explore the pitfalls of the American immigration system. The game’s lesson is simple: for the overwhelming majority of people in the world, immigrating legally to the U.S. and accessing the pathway to citizenship is simply impossible. The game’s designers want to educate Americans about our immigration system with the hope being a better-informed public might build consensus around immigration reform.
A corollary to the myth about how “easy” it is to immigrate legally to the U.S. is the widespread misconception that undocumented immigrants in the U.S. can just apply to obtain legal status, but simply choose not to. Central to debunking this myth is the concept of “entry without inspection” (“EWI”) and the complicated ways in which it constrains the life outcomes of around half of the 10-12 million undocumented people residing in this country.
Our immigration system creates two distinct categories of “undocumented” individuals, or people without legal status in this country: overstays and EWIs. Continuing to refer to them as a collective group paints with far too broad a brush, because their lived realities, and potential paths to citizenship, are so vastly different. The first group — who make up about half of the undocumented population — enter the country legally, after being “inspected” by an immigration officer, but subsequently fall out of legal status by overstaying their period of authorized stay (“overstays”). The other half of this population enters the U.S. without permission, referred to as “entry without inspection” or “EWI.” Overstaying is a mere civil violation, whereas entering without inspection is a federal misdemeanor.
The differential treatment of these two groups under existing law cannot be overstated, but also could not be more misunderstood. During the 2020 primary debates for the Democratic presidential nomination, nearly every candidate excoriated Trump’s separation policy, which used “zero tolerance” to prosecute all EWIs for their illegal entries and then used these criminal prosecutions to justify removing children from their EWI parents.
Unfortunately, the candidates 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 U.S. for decades and have U.S. citizen spouses and children.
Immigration law penalizes those who entered EWI by blocking most avenues for obtaining legal status — except in cases involving “extreme hardship” or “exceptional and extremely unusual hardship” to a U.S. citizen or permanent resident immediate relative. Thus, while a person who overstayed may be eligible to be sponsored by their adult U.S. citizen child, someone who entered EWI is generally barred. Changing this will require Congress to enact serious immigration reform, which last happened almost 40 years ago.
The inability of EWIs to regularize their status results in consequences that most Americans would agree make little sense. When Americans think of stereotypes evoked by the derogatory term “anchor baby” and by movies about romantic green-card marriages (like “The Proposal“), they fail to appreciate that these legal pathways are open to only half of the undocumented population in this country — that is, the “overstays,” and not the EWIs.
What does this look like in practice? A hardworking, law-abiding mother with three U.S. citizen children and over 20 years of residence in this country has little or no hope of regularizing her immigration status because she entered the country unlawfully. By contrast, her older sister back in Guatemala — who lives there with her three kids and has never set foot on U.S. soil — may be sponsored to immigrate here by their recently naturalized U.S. citizen mother. Even those who agree that there must be some penalty for unlawful entry might very well see the inequities in such a system, and see the shades of gray that exists between these two extremes.
Given the harsh penalties associated with the EWI designation, one might ask: if she could turn the clock back 20 years, why didn’t our hardworking mother of three just get in line for a visa to immigrate legally, or come here on a visitor’s visa and then just overstay? Because for nearly everyone in her situation, there simply is no line (and no way to get in line). 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 enable you to overstay. Your options are to enter illegally — or not at all.
So where does this leave us? Right back where we started, ready for another round of “The Green Card Game.” But maybe this time, we will 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 individuals like her — who entered this country without inspection and whose only chance lies with Congress.
Sheila N. Hayre is clinical professor of law at Quinnipiac University School of Law.