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Legal Immigration Quota Backlogs Increase: Why Enforcement-Only Legislation Creates More Ilegal Immigration

The U.S. State Department announced today that the family-based permanent legal immigration quota will retrogress in January. The State Department makes monthly estimates about visa use around the world through an extremely complex formula that hardly anyone understands. Although the State Department posts a brief explanation online, it does not adequately reflect the true complex nature of calculating when visas are available. Not only does the State Department have to monitor how many permanent immigrant visas are being issued by each U.S. consulate world wide, but applications filed within the U.S., called “adjustment of status”, also have to be monitored. Immigrant visas and adjustment of status applications can only be filed and granted when the quota is current. But in between those times, the quota can retrogress or become backlogged.

The quota status is published monthly in the Visa Bulletin at www.travel.state.gov. By understanding how the quota works, one can better understand why fixes are needed to the legal immigration system. Without these fixes, enforcement-only legislation will increase the numbers of people who fall out of status, or will encourage people to come illegally if one understands anything about the human condition or drive to protect and feed one’s family.

I tell my clients to think of it this way. Suppose you are trying to see a movie at a theatre with 100 seats. You arrive at the theatre and the seats are sold out and you have to stand in line. How long you stand in line depends on demand for the limited supply of seats. You may get into the theatre for the next movie, or after several movies. Think of movies as months, maybe years. When people try to immigrate through family members, depending upon the relationship combination involved, the beneficiary may be waiting in line at theatre A, theatre B or theatre C for example, which we call preference categories. These are all defined and explained in the Visa Bulletin every month.

Where you are in line is further complicated by where you were born since visas are issued by country of birth, not citizenship, and each country is allocated a finite number of visas per category. If you were born in India, China, Mexico or the Philippines, you will usually wait much longer than everyone else. There are a few obscure rules on “cross-chargeability”, so it’s worth getting some legal advice to see if the beneficiary might fall into the world-wide category, which covers everyone else. But, for the most part, every single family preference category has been backlogged for years, and even moreso for Chinese, Mexicans, Indians and Filipinos. The only people NOT subject the quota backlogs are spouses and parents of U.S. citizens and minor unmarried children under 21 of U.S. citizens.

Here are a few examples of the family quota released today in the January 2011 Visa Bulletin:

  • A U.S. citizen sponsoring a sibling from the Philippines must have filed his or her initial petition in January 1988 to get a visa next month. (4th preference category) A Filipino sibling trying to immigrate today must wait 23 years! By contrast, a sibling from Mexico must wait 15 years, and a sibling from Canada (or France or Brazil, etc.) must wait eight years.
  • A spouse or unmarried minor child of a green card holder (not a U.S. Citizen) must wait over five years if from Mexico, and three years if from anywhere else. (Preference 2A)
  • A married adult son or daughter of a U.S. citizen must wait 19 years if from Mexico and 20 years if from somewhere else. An unmarried adult child of a U.S. citizen from Mexico has to wait 23 years; from the Philippines there is a 22-year wait, and if from anywhere else, there is a 5-year wait. (Preference 1)


Where
you stand in line further complicates things. If the beneficiary is abroad and the sponsoring relative is in the U.S., you can see that this family will be separated for many years, even decades in some cases. In fact, they might never see each other again. If the beneficiary is in the U.S., he or she must have a valid underlying nonimmigrant visa, humanitarian parole or some authorized stay to be legal. With rare exceptions, there are no visa categories that last 20+ years. Thus, the beneficiary is more likely to have arrived illegally or will fall out of status if trying to stay with the sponsoring family members. This is why the argument that the DREAM Act or amnesty will unleash untold chain migration is not true, as I discussed in my post, Anti-DREAM Act Rhetoric: Busting the Myths. What do people do when they are separated from their families? They either bare with it, or they do what they have to do to be together, especially when a spousal or parent-child relationship is involved.

Even if the family waits for the quota delays, the beneficiary still might not be able to immigrate if he or she is subject to a three or 10-year bar due to the unauthorized stay if leaving the U.S. to pursue the visa at a consulate. In my earlier post cited above, I showed why the arguments about chain migration are wrong, because the combination of quota delays and the bars can add decades to someone’s ability to immigrate, if at all. Instead, we have massive illegal chain migration because Congress has not fixed three pieces of the puzzle: categories, numbers and bars.

Employment based permanent immigration has the same quota problems. Again, we have a set of preference categories in which to immigrate based on talent and education levels, finite, per-country limits and demand often exceeding supply in some categories. When the economy is good, the backlogs are bad because demand exceeds supply. Right now, while the economy is poor, few employers are sponsoring people, so there are relatively few backlogs. But the backlogs are quite bad for well educated and talented employees born in China or India who were able to get in line (employers wanted to sponsor them) for green cards when the economy was good and hiring was strong. Chinese and Indians with masters degrees or having exceptional abilities in their fields are backlogged by almost five years. The problem is that most are here legally on H or L visas with a maximum of six to seven years. Therefore, some of these highly skilled workers will have a gap between their nonimmigrant visas being current and their ability to complete permanent immigration.

The unskilled worker category (labeled as “other workers” in the Visa Bulletin) for jobs requiring less than two years experience to perform the job duties, has a backlog worldwide of almost seven years. There are only 5000 visas a year allocated worldwide in this category, making the wait very long. This explains why we have so much illegal immigration in the unskilled trades: there are no temporary visas and there are insufficient permanent visas, yet employer demand is high. Meanwhile, skilled workers with two years or more experience or bachelors degrees (third preference) have to wait at least five to eight years depending upon where they are from worldwide. This will be a big problem for all those on H and L visas that run out in six to seven years before the quota becomes current.

Legislators and their supporters who want to have border enforcement benchmarks before they fix anything about the legal immigration system just don’t get it. The Visa Bulletin demonstrates why we need new types of nonimmigrant categories, fixes to the existing categories, and changes to the categories and numbers allocated to family and employment based immigration.