5) Congress should replace the bars with a more reasonable and effective alternative
The three- and ten-year bar provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, put into place over two decades ago, were intended to dissuade individuals from remaining in the U.S. outside of legal status. As we have seen, this punishment is not only not proportional with the offense, they just don’t work; a more reasonable alternative is needed.
FWD.us concurs with lawmakers, experts and advocates who support eliminating the bars altogether. We also recommend they consider alternatives, such as monetary penalties for shorter lengths of overstay, or a reduction in the duration of the bars to one and five years instead of three and ten years. As was done in the comprehensive bill that the Senate passed with bipartisan support in 2013, the grounds to qualify for a waiver could be expanded; the process made easier for applicants to explain periods of unlawful presence; and adjudicators could be given broader discretion to consider these factors and waive penalties.
Such changes would not be out of line with the way that other developed nations address unlawful presence. For example, Canada bars for one year, Australia for three, and both have a process for applicants to explain their circumstances and have the bars waived. Germany limits re-entry bars at five years, while the Netherlands varies lengths based on aggravating factors, with the standard length of the bar set at two years, with the possibility for extension (such as up to five years if the violator is also given a prison sentence or uses falsified documents, or up to 20 years for issues of public order and national security). Mexico requires visitors to pay a fee before departing.
Addressing the unlawful presence bars is an opportunity for real bipartisan reform. Updating these overly punitive policies would be a crucial first-step towards broader, comprehensive immigration reform that establishes a fair legalization process for the undocumented population living in the U.S. today, and to reduce future instances of immigrants becoming long-term undocumented individuals by allowing them to take advantage of legal avenues available to them.