ABSTRACT
The current backlog of over 3.5 million immigration visas places strains on mixed immigration status families and exacerbates the undocumented population problem. Families who choose to wait for a visa to become available before reunifying may strain the family unit. Those who reunify in the United States without first obtaining legal status face deportation and inadmissibility because of their unlawful residence in the United States.
Congress has made some attempts to alleviate these strains. Unfortunately, the broad intent of these statutory changes has run up against narrow administrative interpretation. Nonetheless, in the present political climate, administrative solutions that seek to solve inadequacies in the current system are more politically expedient than installing a completely new family visa program. Therefore, immigration reform efforts must focus on expansive statutory interpretation of these and other existing statutes.
In this essay I outline the social costs of an inadequate family visa program and offer some suggestions for administrative improvements to the program that do not necessitate legislative action. However, the inadequacies of the current family petition system must eventually be addressed through a congressional overhaul of the process. Therefore, I visit the history of narrow administrative interpretation of immigration legislative action to highlight how important agency interpretation is in the drafting of immigration legislation. I conclude the essay by discussing the elements I believe should be included in family visa petition reform.
TABLE OF CONTENTS Abstract Introduction I. The Line: The Visa Petition Program Basics II. Jumping the Line: The Rise of Undocumented Mixed Status Families in the United States III. Forced Off the Line: The Declining Ability of Beneficiaries to Legally Immigrate . A. Legislative Roadblocks to Remaining on Line and Advocacy Efforts to Remove Them B. Life's Roadblocks to Remaining on Line and Advocacy Efforts to Remove Them C. The Score Card on Efforts to Place Relatives Back on Line. IV. Redrawing the Line: Minimizing Family Reunification Failures INTRODUCTION
The Immigration and Nationality Act (INA) permits American citizens to immigrate a spouse, parent, or child (unmarried and under twenty-one years old) to the United States. (1) These family members, commonly known as immediate relatives, are not subject to the congressional annual limits on immigrant visas. (2) Approximately 536,000 immediate relatives of American citizens immigrated to the United States last year. (3) The spouses and unmarried children of Lawful Permanent Residents, as well as the siblings and adult or married children of U.S. citizens, can also immigrate, but they must wait for an available immigrant visa. (4) The United States issues 376,000 immigrant visas each year, of which 226,000 are allocated for non-exempt family immigration. (5) Unfortunately, the allocated visas are insufficient. As a result, there are approximately 3.5 million pending family visa applications. (6) Moreover, because no more than 26,260 visas can be granted to a country per year, there is a huge backlog for Mexico and the Philippines. (7) There are 1.5 million visa applications pending for nationals from these two countries, translating into decades-long waits for visa approvals. (8)
Much can happen while individuals wait for visa approvals. The desire to see loved ones can lead to individuals entering or remaining illegally in the United States. The petitioning relative can die, a marriage can be terminated, or a derivative child (9) can get married and be rendered ineligible for a visa. United States immigration laws account poorly for these externalities.
This essay catalogs the process and bottlenecks faced by families attempting to navigate the immigration process and examines some of the proposed changes. The essay suggests that, in the present political climate, solutions are more politically expedient if they seek to solve inadequacies in the current system. Eventually, the inadequacies of the family petition system must be addressed through an overhaul of the process. This essay also offers some suggestions toward this end, discussing elements that should be included in a family visa petition reform.
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THE LINE: THE VISA PETITION PROGRAM BASICS
Keep a close watch on this heart of mine I keep my eyes wide open all the time. I keep the ends out for the tie that binds Because you're mine, I walk the line. (10) The family visa petition process has three steps. The first step is for the petitioner, a U.S. citizen or Lawful Permanent Resident, to submit a visa application. (11) The petitioner must include proof of his immigration status. (12) He also must prove that the intending immigrant, known as the beneficiary, is in fact related to the petitioner. (13) If the beneficiary is an immediate relative of a U.S. citizen, he can move to the next step in the process, (14) otherwise he is placed on the visa family preference waiting list ("priority list"). (15) How quickly a preference category relative is able to take the next step depends on a number of factors. These include the visa category, the country of citizenship of the beneficiary, and the number of individuals with earlier priorities who immigrate.
It is difficult to predict with any certainty how long it will take for a spouse to be eligible to immigrate. (16) Currently, the Mexican spouse of a Lawful Permanent Resident must wait two and a half years before being allowed to immigrate to the United States. (17) Just a year ago, the waiting period for Mexican spouses of Lawful Permanent Residents had reached seven years. (18)
Once the beneficiary reaches the top of the priority list, the second step in the process is to determine where the person can apply for the immigrant visa. There are two jurisdictional options: (1) the U.S. Citizenship and Immigration Services (USCIS) offices in the United States; (19) or (2) the U.S. consulate in the beneficiary's country of origin. (20) An applicant can submit a petition at the local immigration office under two circumstances: (1) he is physically in the United States pursuant to a lawful admission and is the immediate relative of a U.S. citizen; (21) or (2) he is the beneficiary of a family petition filed before January 14, 1998 or April 30, 2001. (22) The latter deadline requires the beneficiary to have been present in the United States on December 21, 2000. (23) A person who does not qualify for adjustment of status in the United States must apply for an immigrant visa abroad, regardless of whether he or she resides in the United States. (24)
The third step, the issuance of the immigrant visa, requires that the beneficiary establish that he is not inadmissible. (25) Under 8 U.S.C. [section] 1182, there are numerous grounds that may bar an individual from immigrating despite the fact that they are related to a U.S. citizen or Lawful Permanent Resident. There are bars for crimes, (26) immigration violations, (27) contagious diseases and mental disorders, (28) national security concerns, (29) and public charge. (30) A successful immigrant visa applicant is permitted to become a Lawful Permanent Resident and live in the United States. (31)
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JUMPING THE LINE: THE RISE OF UNDOCUMENTED MIXED STATUS FAMILIES IN THE UNITED STATES
I find it very, very easy to be true I find myself alone when each day is through Yes, I'll admit that I'm a fool for you Because you're mine, I walk the line. (32) If the beneficiary resides abroad, he or she is generally unable to visit or legally relocate to the United States prior to the third step in the process. There are no provisions in the INA that specifically permit family members with pending petitions to travel to the United States either to visit or remain. To legally enter the United States, the family member must qualify for a nonimmigrant or employment-based immigrant visa. (33) The problem for family members waiting to immigrate is that nonimmigrant visas require applicants to establish that they lack immigrant intent. (34) Even if the relative is years away from securing the family visa, consulates regularly use this provision to deny nonimmigrant visas. (35) Individuals, who avoid disclosing their pending immigrant petition and enter using a pre-existing, multiple-entry visa or the Visa Waiver Program, risk being denied admission at the port of entry, (36) subjected to expedited removal, (37) or accused of misrepresentation when they apply for immigrant status. (38) The other alternative, an employment-based immigrant visa, is not the focus of this paper and I will not discuss it further except to note that it is an even less promising option. (39)
The relative with status in the United States can travel to visit the beneficiary abroad, (40) but the visits cannot be prolonged, as extended stays outside the United States affect a Lawful Permanent Resident's admissibility (41) and ability to apply for naturalization. (42) Pursuant to 8 U.S.C. [section] 1101 (a)(13)(C)(ii), Lawful Permanent Residents who travel abroad are not subject to the grounds of inadmissibility unless they are making a new admission. The admission statute is triggered when a Lawful Permanent Resident has been absent from the United States for over 180 days (43) if the re-entry is subject to other sections of the statute relating to prior criminal violations (44) or re-entry violations. (45) For some Lawful Permanent Residents, it is detrimental to trigger a new admission because it could render them deportable for a pre-existing ground of inadmissibility. (46)
However, the more common harm from an extended absence is a delay in eligibility for naturalization. Under 8 U.S.C. [section] 1427(a) an applicant for naturalization must be physically present in the United States for half of the period of residence eligibility. (47) For example, if the...
