Immigration Matters

Obama's Immigration Plan

A week ago, the White House leaked details about Obama's plans for immigration reform should Congress fail to act.  What does the plan tell us?

First, the plan has much more detail than anything yet released by any Congressional groups working on reform.  The level of detail tells Congress and the general public that the President is very serious about immigration reform and has invested a considerable amount of time thinking about what it should look like. Congress now knows that if it doesn't act, the President is willing to act and would have something to send over to Congress very quickly.  This should induce Congress to move more quickly.

Second, while the plan reveals more details, not all aspects of immigration reform are equally detailed.  The plan provides more detail on the path to citizenship than any other aspect of immigration reform.  This is no accident.  It is an attempt to reassure the Latino community that the President understands its concern.  The Latino community's primary concern has always been the provision of a path to citizenship because that provides relief from the relentless focus on enforcement and brings people out of the shadows.    

Third, it shows the President understands that any path to citizenship should not be tied to sponsorship by a family member or an employer.  Instead, the path to citizenship is tied to being present in the U.S. on a certain date.  This is important because a path to citizenship tied to sponsorship by a family member or employer would either require a huge increase in the annual quota of visas or create waiting lists that potentially would take decades to clear.  Neither scenario is politically acceptable. The President is sending a signal to Congress that any path to citizenship that Congress proposes also should be tied to presence, not sponsorship.

Fourth, the plan reveals what the President means by the principle "go to the back of the line."  With his proposed plan, people who are here illegally will wait 8 years to get a green card.  During that 8 years,  the President intends to clear existing waiting lists.  To accomplish that would require a significant increase in visas.  What his plan does not reveal is whether that increase to the volume of visas would be permanent or temporary, but at least the waiting lists would be cleared.

Fifth, even if the President's preferred path to citizenship is adopted, it will not be as generous as the President proposes.   Although 8 years is a long time to wait for a green card, in all other key respects, the President's path to citizenship is extremely generous: small penalty, no minimum time spent in the U.S.  It is extremely unlikely Congress would pass such a generous path to citizenship.  Congress more likely would require proof an applicant has been here for a certain amount of time instead just proving presence prior to the introduction of the immigration reform bill to Congress.  Similarly, the penalty fee would be much higher.  The penalty fee for the 245(i) amnesty in 2001 is $1,000.  Based on an inflation adjustment, the 2013 amnesty fee would more likely be at least $2,000-$2,500, if not higher.

Sixth, the President is sending a message to those who already qualify for a green card under existing immigration laws:  they should move forward based on existing laws because that will help them get a green card faster and with fewer conditions.  Eight years to get a green card is a long time.  Certain individuals (e.g. spouses of U.S. citizens) can get a green card under current laws in about 16 months. 

The coming weeks will be interesting as immigration reform debate unfolds.  Hopefully there will soon be a bill before the Senate or the House.

Is Immigration Reform Imminent? Should I Wait or Proceed with My Case?

If the media is to be believed, then after years of waiting, repeated disappointments and continuous frustration, Congress has finally got its act together: immigration reform is about to happen! 

I wish.

For all the media attention on immigration reform, there's remarkably little detail.  There's talk about more visas, but nobody has offered any numbers.  There's talk about principles such as "go to the back of the line" with no explanation of what that means.  Yet these are two points that are central to any immigration reform that seeks to solve the current problem of 10-12 million people living illegally in the U.S. and to prevent the same situation again in 15-20 years time.

There's also evidence of a significant difference of opinion about whether those who are here illegally should ever have the right of U.S. citizenship or even a permanent green card. My great fear is that in return for additional visas (which won't be in volumes sufficient to solve the current problem or prevent its recurrence), Democrats and moderate Republicans will agree that those unlawfully present may get only conditional residence (e.g. work authorization but no green card).

So what does that mean for people who are eligible to get a green card already, i.e. the spouses of U.S. citizens ?  It means you should seriously consider moving forward with your case based on current immigration laws.

Current immigration laws have never been more favorable toward the spouses of U.S. citizens, even those who entered the country illegally. 

The spouses of U.S. citizens who entered the country lawfully are eligible to have their immigration interview here in the U.S., even if they have long overstayed their visa.  This has been law for a long time.  Eligible applicants get a green card in about 4 months.

The spouses of U.S. citizens who entered the country illegally still must return to their country to have their immigration interview, but the hardships of doing that have recently been significantly reduced. 

The act of leaving the country after living here illegally for more than a year makes a person inadmissible for ten years, i.e. they may not re-enter the U.S. for ten years.  However, there's an exception to that law if the U.S. citizen spouse can prove extreme hardship.  The application for the request is known as "the hardship waiver." Under current regulations, the hardship waiver cannot be made until after the immigration interivew.  This then condemns the applicant to remain outside the U.S. for 5-6 months while the government makes its decision.  For many couples, that amount of separation is too much to bear.  So they do nothing.

But on March 4, 2013, the government's provisional hardship waiver regulations go into effect.  This new regulation changes when the request for the exception is made.  From March 4, onwards, the exception is requested before the applicant even leaves the country. This means that if hardship waiver is approved, the successful applicant will be outside the U.S. for no more than about 3 weeks.

Under the provisional hardship waiver regulations, the process for getting the green card will take about 14-16 months, of which about 3 weeks will be spent outside the U.S.

So the question on the minds of everyone who entered the country illegally and is married to a U.S. citizen is this: "Am I likely to get a better offer if I wait for immigration reform?" 

If you are inadmissible only because you have lived here illegally for more than a year, then the only better offer would be a permanent green card without leaving the country for an immigration interview.

But what Congress appears to be talking about at best is a conditional green card that won't convert to a permanent green card for five years or more.  Compare that with a permanent green card within 14-16 months under the terms of the provisional hardship waiver.

In all likelihood, the amnesty process also would include a penalty that would be far more than the filing fee for the provisional hardship waiver and might even exceed the costs of living apart for three weeks.

In short, anyone who qualifies for the provisional hardship waiver should seriously consider moving forward with their application because whatever Congress comes up with for immigration reform either will take a lot longer (and be more expensive) or will not lead to eventual U.S. citizenship.

 

Immigration Reform: What Does Back of the Line Mean?

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.