There's a lot of chatter going on about immigration reform and the principles that should govern it. One principle repeatedly espoused is that those who are here should "go to the back of the line." But what exactly does that mean?
The principle suggests that the pathway to citizenship will be tied to sponsorship by a family member or an employer. The "back of the line" refers to the waiting lists for immigrant visas.
We group immigrant visas into three types: immediate relatives, preference relatives and employment-based.
For immediate relatives, there is no ceiling on how many may emigrate so there is no waiting list. Immediate relatives are the spouses, parents and children <21 of US citizens. Without a waiting list, there is no "back of the line" for immediate relatives. This means they would get their green cards within a year.
For the other two types of immigrant visas, there are annual limits. The maximum is 226,000 for preference relatives and 140,000 for employment-based.
The preference relatives and employment-based immigrant visas are further broken down into 5 classes each. Each class has its own annual limit. For example, the class for brothers/sisters of US citizens has an annual limit of 65,000.
As long as demand does not exceed the annual limit of a visa class, there is no waiting list. For example, the employment-based immigrant class known as EB-1 never has a waiting list because the demand never exceeds the supply. So anyone here illegally who qualifies for an EB-1 visa also will have their green card within a year. (However, it's also rather unlikely that anyone here illegally qualifies for the EB-1 visa.)
Unfortunately, all of the preference relative classes have demand well in excess of the supply.
Furthermore, the demand for EB-3 and EB-2 employment visas also exceeds supply.
The waiting list situation also gets complicated by another rule: no country may have more than 7% of visas in any given year. This creates separate waiting lists for four countries: Mexico, India, China and Philippines. These countries have separate waiting lists for each visa class because more people apply for visas from those countries than from other countries.
For preference relatives and people who might qualify for the EB-3 or EB-2 visa, the issue then becomes "how long is the waiting list?" because that determines when the "back of the line" will reach the "front of the line."
Consider one class: the Mexican unmarried sons/daughters of U.S. citizens. The government currently is dealing with applications filed in 1993. This gives the impression the waiting list is 20 years long, but it is actually longer than that because the waiting list does not move forward at the rate of one month per month.
If Congres passes immigration reform based on sponsorship by a family member and follows the principle of "go to the back of the line," then for the Mexican community, the line stretches at least 20 years and possibly much longer unless Congress significantly increases the number of visas available.
How many visas would be needed? Considerably more than what currently is available. Even if Congress increased the supply by 200,000 a year, that will not clear the waiting lists within say 5 years.
How likely is it that Congress will increase the annual limits sufficient to clear waiting lists within 5 years? Unlikely.
In short, tying the path to citizenship to sponsorship by a family member or an employer is a recipe for reform that is not reform for the overwhelming proportion of people who are living illegally in the U.S.
Is there another solution that still honors the principle "go to the back of the line?" Yes there is.
1) Tie the path to citizenship to being in the U.S. on a certain date for a specific amount of time (similar to the DACA initiative). Issue a conditional green card valid for 5 years.
2) Reclass the spouses and children under age 21 from preference relatives to immediate relatives.
3) Eliminate the remaining preference relative classes, allowing those already on the lists to be grandfathered (i.e. they can still emigrate, but nobody else can join the lists).
4) Temporarily increase the number of visas for preference relatives and
employment-based immigrants sufficient to clear the grandfathered waiting lists
within 5 years.
5) After clearing the waiting lists, re-allocate the preference relative visas to the employment-based immigrant visa classes.
This solution would put those who are here illegally at the back of the line because they would not get their permanent green cards until everyone else on the waiting lists got theirs.
This solution also would help prevent recurrence of our current situation: 10-12 million people living illegally in the U.S. Our current situation arose for two reasons. First, the government's failure to enforce existing laws. Second, the government's failure to match visa supply to visa demand.
The second failure has led to long waiting lists. Many on the waiting lists are waiting patiently outside the U.S., but large numbers are already here. Whether they are here legally or illegally depends on which waiting list they are on.
Those who are here and on the employment-based waiting lists are almost all here lawfully because otherwise they have no chance of getting their green card once they reach the top of the waiting list without leaving the country. (If they have to leave the country because they are unlawfully, then they cannot re-enter the U.S. for ten years unless they prove they have a spouse or parent who is a U.S. citizen or LPR who will suffer extreme hardship. If they have a U.S. citizen spouse, then they will not stay on the employment-based waiting list because they can get their green card faster through their spouse.) Most are on H-1B visas.
Of those on the family-based waiting lists, the majority are illegally here. Some came on visas and overstayed. Some came in illegally. Why? Because they got fed up waiting. They wanted to be with their families now, not twenty years in the future, so they found a way to enter the country.
If Congress does not eliminate preference relative visas, then 20 years from now we will be in the same situation.
Some people think it would be harsh and cruel to deny people the opportunity to sponsor their adult sons/daughters and brothers/sisters, but consider the following:
1) We allow US citizens to sponsor their parents and siblings and married sons/daughters, but lawful permanent residents (LPRs) may not sponsor such relatives.
Nobody argues that is harsh or cruel to not allow LPRs to sponsor their parents, siblings and married sons/daughters. Furthermore, the unmarried sons/daughters of LPRs are quite willing to sacrifice getting married to preserve their visa, showing that people are perfectly willing to follow the rules. If the rules do not allow sponsorship of adult sons/daughters and siblings, then these relatives won't expect to live here.
2) Most other countries do not allow their citizens to sponsor siblings and adult sons/daughters.
The US is unusual. Discontinuing sponsorship of siblings and adult sons/daughters brings US immigration laws into line with other countries.
3) Cruelty is holding out the promise of sponsoring an adult son/daughter or sibling, then providing so few visas that the son/daughter/sibling sits on a waiting list for twenty years or more.
Congress will never provide a supply of visas for adult sons/daughters and siblings that comes anywhere near the demand. If Congress cannot match the visa demand, then Congress should stop playing with people's emotions and discontinue sponsorship of adult sons/daughters/siblings.