There is often no clear demarcation between “legal” and “illegal” immigration.
It’s far easier to end up on the wrong end of the spectrum than you might think.
There is often no clear demarcation between “legal” and “illegal” immigration -- and it’s far easier to end up on the wrong end of the spectrum than you might think.
The most common refrain I hear as an immigration lawyer is that people support only “legal” immigration; people want immigrants to “get in line” and do things “the legal way.” To immigration lawyers, this type of statement is a dead giveaway that the speaker has no actual knowledge of the US immigration system, a cue to rewind the conversation back to basics. As I wrote a couple of weeks ago, such oft-repeated myths are easily refutable with a quick Google search. Nevertheless, they persist.
There is often no clear line between “legal” and “illegal” immigration. The misguided idea that there is one clear, accessible, navigable path to legal immigration status — if immigrants would just comply! — is widespread. This misconception belies the vast complexity of the US immigration system, a labyrinth so complex that even experienced immigration attorneys generally practice within specific focus areas.
So, to those who insist on “legal” immigration, I have questions:
What do you mean by “legal” immigration?
Do you mean the person’s status at the moment of crossing the border? Or some other moment in time?
What about asylum seekers, who are eligible to apply for asylum regardless of their manner of entry to the US and have no way to apply for asylum from abroad?
What about immigration court, where immigrants in removal proceedings have the right to present a defense against deportation and can end up with legal status through that process?
What about people who enter with a visa and overstay it?
What about people who overstay a visa, but later obtain status in another way?
What about people who are eligible for a form of relief like the U visa, which takes nearly a decade to receive?
As you can see from just these few initial questions, a person’s immigration status often defies easy categorization as “legal” or “illegal,” and immigration status is not static. The same person can shift along the spectrum over time. At the same time, the Trump administration is doing its best to strip more and more people of their immigration protections and statuses every day. A first step toward a more humane immigration system is bridging the gap between the public’s perception of how immigration works, and the reality of the US immigration system.
There is No Line!
First things first: there is no line. The vast majority of immigrants -- including those already in the US undocumented, and those who may wish to immigrate here -- have no viable path to obtain legal immigration status under current immigration law.
The options for obtaining legal immigration status are extremely limited, and most people simply do not qualify for immigration status. There is no “general” application one can file for work authorization or immigration status. There are four primary ways to obtain legal status in the US:
Each of these categories has strict requirements, and most people do not qualify for any of them. There are approximately 13.7 million people in the US who are undocumented with no protection from deportation. Most of them will never qualify for legal status.
No matter how many years they’ve been here in the US.
No matter how many years of taxes they have paid.
No matter how good of a person they are.
No matter how many US Citizen children they have.
No matter how hard they work.
Current immigration law simply does not provide these folks with a path to legal status.
Immigration Status is a Moving Target
Immigration status is not static. It is not necessarily something you get once and have forever. It can change over time, based on a variety of factors.
For example, the largest population of undocumented people in the US are people who entered on a valid visa and overstayed the visa. At the time of their entry to the US, these individuals had legal immigration status. They later fell out of status when their visas expired, leaving them undocumented.
However, if a person in that situation has a family member who can petition for them, they could obtain status again through that family relationship, because they had an initial lawful entry. In this way (and in many other configurations; this is just one example), the same individual can slide along the spectrum, sometimes having status, and sometimes living undocumented, depending on factors like their life circumstances and changes to the law.
Immigration Status is Often Better Understood as a Spectrum: “Limbo” Statuses
Immigration status is often better understood as a spectrum, rather than a strict binary of “legal” or “illegal.” Even for immigrants who do have some sort of path to having legal status, there often is not a bright line between “legal” and “illegal” immigration status.
Slightly more than 25% of the undocumented population actually has some type of immigration case in process -- not quite undocumented but not quite documented, either. Lengthy case processing times and immigration court backlogs mean that even undocumented people who have a path to legal status live in limbo for years at a time while their cases are pending. Some wait times exceed 20 years!
Some types of pending status allow the applicant to obtain a work permit and social security number, which may open the door to other benefits, like a driver's license and health insurance (depending on the state where the applicant lives). Others languish with no way to work lawfully or access critical resources like health insurance for years.
These “limbo” statuses include applicants with pending asylum cases, pending U visas (for victims of certain serious crimes who cooperate with law enforcement in the investigation of the crime), pending T visas (for survivors of human trafficking), and many other types of pending cases. During the wait, some people are more protected from ICE detention and deportation than others, and the level of protection or respect for that pending case varies by administration.
For example, in May 2022, the Biden administration began giving youth with Special Immigrant Juvenile Status (“SIJS”) something called Deferred Action. SIJS is a path to citizenship for children who have been abused, abandoned, or neglected by a parent. Throughout the history of the SIJS program, children who received an SIJS approval faced a long wait for a green card, with no way to obtain a work permit or social security number while they waited. In some parts of the US, SIJS youth were detained and deported by ICE because their green cards were not immediately available.
Then, in 2022, the Biden administration began granting Deferred Action to these young people. This was a game changer. For the first time, these kids had temporary protection from deportation (Deferred Action) and the ability to apply for a work permit and social security number. Now, they could work lawfully, attend college more easily, get a driver’s license, and have a sense of stability while waiting for their green card.
On June 6, 2025, the Trump administration quietly ended the Deferred Action program for SIJS youth. (Advocates noticed that Deferred Action grants had actually ceased earlier, but there had not yet been a formal announcement). With the end of the Deferred Action program, SIJS kids are put back in limbo. When current grants of Deferred Action and work permits expire, these kids will be unable to renew them. They will lose their deportation protections and be unable to work lawfully. New applicants will not be able to get Deferred Action or work authorization at all.
Even for those who currently have Deferred Action, anecdotal evidence suggests that ICE does not give it much weight. I know of several SIJS youth who were deported after ICE unilaterally revoked their Deferred Action (despite it having been initially granted Deferred Action by USCIS, an independent agency).
The Trump administration has abruptly thrown abused, abandoned, and neglected kids back down the immigration status spectrum, closer to the “totally unprotected” end of the spectrum. Now, SIJS kids will face ICE detention and deportation while they sit in the SIJS backlog. Like many immigrants who live with years of instability in these “limbo,” in-progress statuses, SIJS kids are neither documented or undocumented, subject to the whims of ICE and each presidential administration.
Criminalization of Asylum Seekers
Asylum applicants are, practically speaking, in another type of “limbo” status while their asylum applications are pending. Applying for asylum is legal under both US and international laws and treaties. Applicants are eligible to apply for asylum regardless of whether they asked for asylum at a Port of Entry or applied after arriving in the US:
There is no way for an immigrant to apply for asylum from abroad. The only way to apply is to arrive in the US and then apply.
Nonetheless, the US treats asylum seekers like criminals: from the 2024 Biden shutdown of asylum at the border; to Trump’s abrupt suspension of asylum and shutdown of the CBPOne app, depriving asylum seekers with scheduled appointments of their opportunity to request asylum; to detaining immigrants at the border and placing them in removal proceedings; to detaining asylum seekers who already live in the US while they await their asylum merits hearings. The examples of the criminalization of asylum seekers are endless, even though they are pursuing the only legal option available to them through the US asylum system. As of this writing, there is virtually no way to seek asylum at the US-Mexico border.
Impermanent Protections
Impermanent, temporary protections can provide protection from deportation without a long-term path to permanent immigration status. They are not technically legal statuses; they are temporary, discretionary protections. Similar to the “limbo” statuses described above, people with impermanent protections live with constant uncertainty and fear of losing their limited protections.
Examples of temporary protections include Deferred Action for Childhood Arrivals (“DACA”), Temporary Protected Status (“TPS”), Deferred Action (this can be granted in many contexts, such as SIJS described above), and Parole. Again, these types of protections defy simple classification as lawful or unlawful.
Creating More Undocumented People
Despite its demands that immigrants come to the US “the legal way,” the Trump administration is creating more and more undocumented people by stripping people of their protections. NBC reports that “More than 1 million people who were granted legal entry to the country under different programs are now considered here illegally by the Trump administration.”
For example, on May 30, the Supreme Court allowed the Trump administration to strip parole protections from Cuban, Haitian, Nicaraguan, and Venezuelan immigrants who were allowed to enter the US with parole and the ability to get a work permit under the Biden Administration. Parole allows certain noncitizens to enter the US temporarily for specific reasons. While parole is not a legal status or a path to citizenship, it provides temporary authorization to enter or remain in the US. The Trump administration summarily stripped these protections from parolees.
Another example is the Trump administration’s efforts to strip about 350,000 Venezuelans of Temporary Protected Status (“TPS”). TPS provides temporary protection from deportation and work authorization for individuals from certain, designated countries facing wars, natural disasters, or other extreme dangers. It is not a permanent lawful status and provides no path to citizenship. Rather, TPS protections must be renewed every 18 months, and countries can be de-designated and denied further extensions. On May 21, the Supreme Court allowed the Trump administration to strip TPS protections from 350,000 Venezuelans.
Other examples include: the Trump administration’s efforts to end birthright citizenship (the concept that anyone born on US soil is a US citizen); the administration’s efforts to end the DACA program, which protects immigrants brought to the US as children from deportation; the announcement of new travel bans; revoking student visas; detaining green card holders to punish protected speech; and the administration’s unilateral requests to dismiss immigrants’ existing removal proceedings so they can be deported quickly without judicial oversight through the expansion of expedited removal.
Removal Proceedings
The US government has a mechanism to deport people it believes do not have legal grounds to remain in the US: removal proceedings in immigration court. That system allows for Respondents (immigrants in removal proceedings) to defend themselves and show that they do, in fact, qualify to remain lawfully in the US. A person can lack immigration status and, through the immigration court process, prove that they qualify for and obtain some type of immigration status. This happens every day and is fully legal.
History Repeating Itself
This is hardly the first time in US history that the US has pulled a bait-and-switch, ripping protections away from folks who were previously protected and making them vulnerable to deportation.
A historical example is the Bracero program. Spurred by a US labor shortage during World War II, the Bracero program was an agreement between the US and Mexico that allowed workers from Mexico to take temporary jobs in the agricultural sector, mostly in Texas and California. The program lasted for 22 years from 1942-1964, during which time more than 4.5 million Mexican citizens worked in the US agricultural sector with the US government’s blessing.
Naturally, the Braceros who traveled back and forth between Mexico and the US created bonds with people and places in the US and depended on the income they earned through the program. That’s human nature. Disregarding the human and economic connections forged over decades, the US terminated the Bracero program in 1964. However, it couldn’t end those human and economic connections that were made. The Bracero program marked the start of a migration pattern of Mexican workers traveling back and forth to earn money. Despite the long history of the Bracero program, since the program ended, migrants from Mexico face the cruel odds of the US immigration system.
The Path Forward
The US immigration system needs a major humanitarian overhaul. Understanding the reality of the US immigration system is a key first step. The US is plagued by politicians on both sides of the aisle striving for viral sound bites, making nonsensical campaign promises about a system they clearly do not understand. As an immigration attorney and advocate, I’m tired of operating under the rules of a playbook that does not match the reality of the system. I’m sick of arguing about “getting in line” when there is no line. Instead, let’s acknowledge the reality of the current system and look forward to ways that we can create accessible, compassionate, humanitarian “lines” that actually lead to immigration status.