For several years, fixing our immigration system has been a hot political topic.
Building a border wall has been at the forefront of most Congressional proposals. Several representatives tout it as the primary cure for an overflow of immigrants trying to enter our country without legal documents.
This approach is short-sighted.
It negects the main component necessary for constructive immigration reform.
What’s that, you ask?
Fixing our antiquated system of processing family visa immigrant petitions and green card applications for individuals who are trying to enter the U.S. through legal channels.
If only 1/4 of the funds allocated to border security went to modifying the family immigration system, the number of undocumented immigrants would rapidly shrink.
As the backlog is cleared out, government savings would increase each year.
Currently, about 4.7 million individuals are stuck in immigration processing backlogs.
83% are family members with approved I-130 immigration relative petitions. They are trapped in a defective immigration system needing abundant repair.
Some immigrants, like those from China, Mexico, the Philippines and India, wait up to 5, 10, 15, or 20 years before they are allowed to reunite with their loved ones.
The Fight To Fix Our Broken Family Immigration System Continues
Many immigration advocates feared the formidable presence of the Trump administration spells automatic doom for sensible immigration reform.
Not Los Angeles Congresswoman Judy Chu.
She reintroduced the Reuniting Families Act (RFA) on July 17, 2019, stating the bill’s purpose is to address the severe backlogs of our family immigration system.
Earlier renditions of the bill were introduced in 2011, 2012, and 2013 by former San Jose Congressman Mike Honda.
The bill was referred to the House Subcommittee on Immigration and Citizenship, where it has laid dormant during the Biden Administration.
However, the Act’s provisions have sparked a lot of discussion about changes that can and should be made to bring out true reform of our broken immigration system.
What Is The Reuniting Families Act?
The Reuniting Families Act is a proposed legislative amendment that endeavors to fix our immigration system by reducing the waiting times for immigrants who apply for visas.
Under the current system, which has not been updated in over 20 years, many immigrants who seek visas in the prime years of their lives are not granted permanent residence until they reach retirement age.
It attempts to accomplish this through a variety of measures, including the increase of family visas, redefinition of family preference categories, placement of caps on waiting times, and modification of per country visa quotas.
In its entirety, the Reuniting Families Act has 19 separate provisions.
Like most legislation, it will be chopped up long before enactment. Some segments are offered to serve as throw-away measures, used primarily as trade bait for conditions more highly prized by the Act’s proponents.
With a touch of good luck, perhaps 1/2 of the recommendations might be enacted.
So I’ve selected the ideas that I feel best serve family immigration interests, and are the most significant for immigrant families to to know about:
- Recapture family-based and employment-based visas already allocated by Congress which are still unused.
- Eliminate the per country limits of family visas currently set at 7%.
- Retention of earliest priority dates to prevent having to go back to the end of the line for new petitions filed on behalf of immigrants.
- Set a ten-year maximum wait time for immigrant family visas.
- Create exemption from family visa limits for adult children of Filipino World War II veterans.
- Redefine the age for stepchildren at the time of their parent’s marriage from 18 to 21 to be classified as immediate relatives.
- Permit U.S. citizens and legal permanent residents in binational same-sex relationships to sponsor their partner for immigration to the U.S.
- Increase the number of green cards annually provided through the Diversity Visa Program from 55,000 to 80,000 visas.
- Repeal the three-year, ten-year, and permanent admissibility bars for immigrants unlawfully present in the U.S. from adjusting to legal status.
- Reclassify spouses and minor children of green card holders as immediate relatives.
10 Reuniting Families Act Provisions You Should Know About
1. Recapture family-based and employment-based visas already allocated by Congress which are still unused.
By simply using unclaimed visas for the period of 1992 to 2015, the number of visas for families and employers for green card applications available today could be increased.
The unused visas will roll over to the next fiscal year. This will help to reduce the number of Immigrants still waiting in the categories with unused visas.
2. Eliminate the per country limits of family visas currently set at 7%.
Right now, all countries get the same percentage of the total visas. By eliminating the 7% cap imposed on each country’s number of visas per family preference category, the long, long waits for immigrants from countries like China, India, Mexico, and the Philippines could be diminished.
I don’t think this wide-open approach to immigrant visas would be a palatable solution for Congress. Instead, an increase from a cap of 7% to 10% is more likely to gain political support. (Another idea would be to temporarily adjust the cap for certain countries with the heaviest waiting lists.)
3. Retention of earliest priority dates to prevent having to go back to the end of the line for new petitions filed on behalf of immigrants.
Due to the long wait for many visas to become available, immigrants often lose their place in line.
For instance, let’s assume a child, age 13, was petitioned by a permanent resident parent in 2011. Seven years later, she marries a permanent resident. This action cancels the I-130 petition filed by her father. Her priority date from 2011 is lost. The new priority date is from 2018.
Under Chu’s proposal, the earlier priority date of 2011 would remain valid.
4. Set a ten-year maximum wait time for immigrant family visas.
Once an immigrant beneficiary has been waiting in line for ten years, their priority date would be deemed current as a matter of law. This would benefit immigrants who are the unlawful children, over 21, of lawful permanent residents, married children of U.S. citizens, and siblings of U.S. citizens from the countries of Mexico, the Philippines, and India.
Given the extremely huge backlogs in these categories, I do not think even an immigrant-friendly Congress would pass such a broad measure. Rather, a special immigrant visa lottery for persons in these categories, with a numerical limit of 10,000 would be more likely to curry favor of elected representatives.
5. Create exemption from family visa limits for adult children of Filipino World War II veterans.
Under the Filipino Veterans World War II Parole Program (FWVP), to take care of aging World War II veterans who defended the U.S., adult relatives are granted parole to live in the U.S. for three years.
In many cases, due to a backlog of 21 years, the parolees will still be waiting for a visa to become available when the grant expires. By exempting them from visa category limits, the adult children will be able to apply for permanent resident status sooner and remain in the U.S. with their veteran parents.
6. Redefine the age for stepchildren at the time of their parent’s marriage from 18 to 21 to be classified as immediate relatives.
At present, a stepchild is a child for immigration purposes if the marriage that created the stepparent – stepchild reationship occurred before the child turned 18. This means If the stepchild had reached 18 before the union took place, the stepchild is out of luck. The stepchild is not allowed to apply for a green card via the stepparent.
On the other hand, when a parent is a U.S. citizen, children under 18 are allowed to adjust their status as an immediate relative, an immigration category without quota limits. This section is an effort to provide equal treatment for stepchildren.
7. Permit U.S. citizens and legal permanent residents in binational same-sex relationships to sponsor their partner for immigration to the U.S.
Although the U.S. accepts visa petitions for same-sex marriages, the government looks to the law of the place where the marriage took place to determine if it is valid for immigration purposes. This creates visa problems for immigrants who reside in countries that disallow same-sex marriages, and then marry in third countries that do not permit out-of-state marriages.
The RFA recognizes this complication for immigrants from certain countries and attempts to ensure equitable treatment of all same-sex couples for purposes of immigrant visas and permanent residence.
8. Increase the number of green cards annually provided through the Diversity Visa Program from 55,000 to 80,000 visas.
The Diversity Immigrant Visa Program was established to promote immigration from countries underrepresented in the United States.
Visa recipients are randomly selected via lottery from a pool of qualified applicants. The program enables immigrants without family members or employers who can sponsor them for U.S. visas an opportunity to lawfully become part of the American landscape.
Given the program’s emphasis on enhancing diversity, it is no small wonder why the current administration wants to eliminate the lottery altogether.
9. Repeal the three-year, ten-year, and permanent admissibility bars for immigrants unlawfully present in the U.S. from adjusting to legal status.
This proposal requires no explanation. Immigrant families required to file I-601 Waivers are well familiar with the impact of these bars. However, since they have become an intregal part of permanent residency law over the past two decades, it is unlikely Congress would repeal them in their entirety.
A greater chance for success might lie in allowing immigrants who file waiver applications while inside the U.S. to attend their interviews at local USCIS offices along with payment of an inadmissibility penalty fee, adjusted for the duration of their unlawful presence.
10. Reclassify spouses and minor children of green card holders as immediate relatives.
I do not support this component of the proposed legislation. I include it here to address an issue often overlooked in the family unity debate: the rights of United States citizens with immigrant spouses and children.
Although I acknowledge the laudable intent of the bill drafters to facilitate a quicker route to green card status for relatives of permanent residents, this suggestion belittles the merits of citizenship for immigration purposes.
In my view as a green card attorney, this legislative idea is not only legally misplaced but also politically counter-productive.
Quite possibly, it was solely added as one of the throw-away trade bait measures.
Trial balloon or not, I believe this component of the RFA sends the wrong message about the family unity rights of U.S. citizens.
Here’s why.
Family Unification Politics Should Not Minimize The Ordeal Of U.S. Citizens
Immediate relatives, as noted earlier, are not subject to quotas. This means there are no limits on the number of green cards that can be issued to them.
To make such a scheme workable, the privilege must be reserved for a narrow group of applicants.
To date, that designation has been limited to specific relatives of U.S. citizens: spouses, minor children (unmarried and under 21), and parents.
Other U.S. citizen family members – children over 21, children under 21 who are married, brothers and sisters – are not considered immediate relatives.
Rather, like spouses and unmarried children (any age) of permanent residents, they fall under the family visa preference categories.
Each of the family preference categories have a yearly quota which cannot be exceeded. This leads to longer waiting times.
To simplify:
- Spouses and minor children (under 21 and unmarried) of U.S. citizens are classified as immediate relatives
- Married minor children, and children over 21 of U.S. citizens are placed in family preference categories
- Spouses and unmarried children (any age) of permanent residents are placed in family preference categories
- Married children (any age) of permanent residents cannot be sponsored for green card status
To be sure, the annual limits for the family visa categories should be increased to reflect modern immigration application rates. Further, permanent residents should be allowed to petition their married offspring for unification purposes. .
But those problems do not extinguish the legitimate justification for the immediate relatives – family preference categories distinction.
The hierarchical difference between the immigration privileges granted to spouses and children of U.S. citizens and those granted to spouses and children of permanent residents is based on a rationale government policy. .
U.S. citizens should be accorded greater privileges in the green card process, including a faster path for their spouses and children to win the right to live and work in the United States.
(To the extent permanent residents feel the system is unfair, applying for U.S. citizenship is a step they can and should take.)
Politically, the distinction is also important.
U.S. citizens are far too minimized in immigration reform discourse.
Perhaps more than any other group of individuals who are part of the immigration debate, the plight of U.S. citizens caught in our malfunctioning permanent residence system may hold the key to capturing the hearts and minds of the middle American.
As a result, the status of U.S. citizen spouses and parents should not be generically diminished to promote family unification for permanent residents.
Instead, like a rising tide lifts all boats, the ordeal of U.S. citizens with immigrant family members should be highlighted. My hunch is this approach would incite a greater degree of public support for the concerns of all families with immigrant relatives.
All-in-all, passage of the Reuniting Families Act is long overdue. With a little political luck, if reformers keep pushing, we’ll get it done.
By Carlos Batara, Immigration Law, Policy, And Politics
