THE WAY WE COUNT

By Gary Endelman and Cyrus D. Mehta

"Perfect numbers like perfect men are very rare.” Rene Descartes

Now is the time to change the way America counts green card numbers.  Congress is presently debating comprehensive immigration reform and grand events are likely to reshape the legal landscape. Yet, at such a seminal moment we ought not lose sight of the value of technical modifications that can have enormous consequences.  Most Americans, including virtually all policy makers, would be surprised to learn that the majority of green cards awarded each fiscal year go not to the principal aliens themselves but to dependent family members, thus reducing even further permanent migration to the United States. In fact, as the waiting lines over the past decade have grown ever longer, this pattern has become more pronounced.  A quick overview of green card distribution during the first decade of the 21st century quickly makes this evident.  Let us take employment based migration in the employment-based first preference (EB-1) category as our data sample. In 2000, there were 5,631 new arrivals under the EB-1, 2,241 went to the principal vs. 3,390 to family members. This means that family members accounted for 58.67% of EB-1.  In 2012, there were 1,517 new arrivals under the EB-1. 516 went to the principal & 1001 to family members. This means that family members accounted for 65.98% under the EB-1. Things are getting worse.

It need not be that way. Neither the law nor logic commend or require such a result. Without creating a single new immigrant visa, Congress can eliminate quota backlogs and restore relevance to a green card system that is sorely in need of such restoration. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression will quickly become a thing of the past. Nor is this merely something for idle academic debate. Rather, it is essential if the path to legal resident status for the undocumented is ever to mean anything. Under any conceivable iteration of CIR, even if there is an expansion of immigrant visa numbers in the preference categories, the undocumented will be relegated to the back of the green card line behind those patiently waiting under the legal system. Unless a solution is found to remediate the tyranny of priority dates, the undocumented like the ancient Israelites who left Egypt, will never enter the promised land. 

Section 203(d) of the INA is the provision that deals with family members. Let us examine what INA § 203(d) says: A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent. There is nothing in INA § 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers.  Is there not sufficient ambiguity in INA § 203(d) to argue even under current law that family members should not be counted against the quotas? 

There is no regulation in 8 C.F.R. instructing what INA § 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. § 42.32 only parrots INA § 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. § 42.32 does not provide further amplification on the scope and purpose of INA § 203(d). We acknowledge that INA 203(d) derivatives are wholly within the preference system and bound by its limitations.. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits. 

INA § 203(d) took effect under IMMACT 90. It still remains a mystery as to why INA § 203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT90 quotas. No clear answer can be gleaned from the legislative history of IMMACT 90. Though family members were explicitly exempted from being counted in the House bill, such exemption was removed in conference with the Senate. Ultimately, Congress enacted INA § 201(d), which set a numerical limit of 140,000 for EB immigrants, and it appears that the intent of Congress in IMMACT 90 was to count family members in the final legislation. Was INA § 203(d) introduced to ensure that family members would be counted especially after the House sought to exempt them? Or was it the converse? Could INA § 203(d) have been a vestige of the House’s intent that was never taken out - to make sure that, even though these derivatives would  be counted against enlarged EB cap, they would not be left out in the cold but still get the same “green card” benefits as the principal? 

If the Executive wanted to reinterpret INA § 203(d), there is sufficient “constructive ambiguity” here too for it do so without the need for Congress to sanction it. We have explained this in our prior article, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center! But we do not want to end on such optimism and throw all caution to the winds.. Thus, we propose a simple technical fix in Congress, which is to exclude family members from the FB and EB quotas. We do not see why this cannot be accomplished as there is already a pedigree for such a legislative fix. The proposed wording to INA 203(d) would be a simple add on to the current text, such as: “All family members, including the principal alien applicant, shall be counted as one unit for purposes of INA 201(c) and 201(d) limitations. They shall not be counted on an individual basis.” Not only did Congress try to remove family members in IMMACT90, but also attempted to do so in S. 2611, which was passed by the Senate in 2006. Section 501(b) of S. 2611 would have modified INA § 201(d)(2)(A) to exempt family from being counted in EB cases. The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again. 

  

Even an increase in the visa numbers in a reform proposal, which might seem adequate today, will again result in backlogs shortly based on the uncertainties with economic booms and busts as well as the varying size of families. An immigration system that does not count derivatives separately will have more of a chance to remain viable before Congress is again required to expand visa categories a few decades later. This will also go a long way in restoring balance and fairness to our immigration system. Sometimes even small things can cast a giant shadow.

AFTER THE OCTOBER 2012 VISA BULLETIN, A DECADE LONG WAIT UNDER THE FAMILY FOURTH PREFERENCE IS A PIECE OF CAKE

By Cyrus D. Mehta

I write this blog with some sarcasm. The family fourth preference (F-4), which allows US citizens to sponsor their siblings for a green card, is horrendously backlogged. It takes over 10 years for a brother or sister of a US citizen to obtain a green card. If the sibling was born in the Philippines, the wait could well be over 25 years. So, why is it a piece of cake?

After the State Department released its Visa Bulletin for October 2012,   the F-4 at least for the worldwide category appears to be more advantageous in terms of waiting time than say the employment-based third preference (EB-3) for India, which is applicable to jobs that require bachelor’s degrees or at least two years of training or experience. The EB-3 for India is so backlogged that it could take a US employer 70 years before the Indian worker it sponsors gets a green card.

What was also disappointing with the October 2012 Visa Bulletin was that the employment-based second preference (EB-2), after being unavailable all summer, emerged in October with a cutoff date of September 1, 2004. This means that employers who filed labor certifications on behalf of foreign national workers with advanced degrees on or before September 1, 2004, can apply for their green cards today.  This does not bode too well because in April 2012 the cutoff date for the India EB-2 was May 1, 2010.  It should have emerged in October at the same cut off level, not back at September 1, 2004. Perhaps, the reason for this giant leap back in time is because many in the EB-3 with priority dates going back to 2004 and earlier are upgrading into the EB-2.  Noted immigration attorney Carl Shusterman has quite correctly called the October 2012 Visa Bulletin a disaster.

But jokes aside, the F-4 is actually a good hedge against the broken legal immigration system in the United States. If you have a brother or sister with kids who are 6 or 7 today, file the I-130 petition and then forget about it. Treat it like a long term stock in a new startup that will increase in value in the years to come.  By the time the green card comes through for your sibling, his or her kids would be 17 and 18, old enough to start college in the US as green card holders rather than  on an F-1 student visa. Note that spouses and children can derivatively get their green cards with the principal beneficiary.  If these kids were born in India, think of the benefit this would give them after they graduate from college and get a coveted job in the US – and let’s hope by then that the US economy would have turned around through some breakthrough technology that would result in an abundance of jobs!  Assuming that the EB-3 was as backlogged in 2023 as it is today, because Congress continued to remain in permanent gridlock, those kids would have to wait about 70 years to get their green card under the EB-3. Instead, the F-4 that you filed with a great deal of foresight today would benefit your nephews and nieces by the time they come of age and are ready to pursue their hopes and dreams in the USA.

What if the kids are no longer children by the time your sibling gets the green card under the F-4? What if they have already turned 21 or more as a child is one who is under 21 under the Immigration and Nationality Act? These are all good and relevant concerns. Fortunately, some of these kids may be able to freeze their age under the Child Status Protection Act. If the child is 23 years old at the time the date on the I-130 petition becomes current, then under INA § 203(h)(1) it is possible to subtract from that age the time that the I-130 petition took to get approved from the time it was filed. For example, if the USCIS took two and a half years to approve the I-130 petition from the date it was filed, then you can subtract 2.5 years from the child’s age, and if the age is reduced so that it falls below 21, then the child can still immigrate with the parent. Thus, it is actually to your advantage if the I-130 petition takes a long time to get approved as that much more time can then get subtracted from the age of a child who may have turned over 21 on the date of visa availability. Fortunately, the processing time at the Vermont Service Center for an F-4 today is just short of 2 years. Processing times will be longer if the USCIS issues a request for more evidence before approving the I-130 petition.  So don’t get too anxious if the I-130 under the F-4 does not get approved so quickly. This time will prove to be precious to reduce the age of a child who is over 21 a decade or more from today, when the visa becomes available under the F-4.

If we had a better immigration system, I would not waste time extolling the so called virtues of the F-4. But when so many preference categories have gone out of whack – 70 years for the India EB-3 and the EB-2 seems to also be going the same way– then we must grasp at straws and the F-4 is certainly one until Congress is able to bring sensible reforms to our immigration system.

HOW FAIR IS THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT?

By Cyrus D. Mehta

H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote. Introduced by Rep. Chaffetz (R-UT), it eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 does become law, it will significantly decrease the wait times for certain countries in the employment-based preferences, especially India and China. Even wait times in the family-based preferences will get reduced.

H.R. 3012 only redistributes the allocation of visas, it does not increase the visas that are fixed in number each year. As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only 300,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the Employment-based second preference (EB-2), those born in India and China have to wait for over 5 years to obtain green cards while all other nationalities do not have any wait times. The situation is even more dire in the Employment-based third preference for India (EB-3). Under the per country limit for India in the EB-3, only 2,800 visas can be allocated each year while an estimated 210,000 Indians, along with their dependants, are eligible for green cards. As a result, according to a report of the National Foundation For American Policy, the waiting time for a green card for an Indian under the EB-3 has been estimated to be 70 years, while it may be over 5 years for others.

As a result of such unmanageable waiting times, skilled foreign nationals in the pipeline for a green card, especially from India and China, have no incentive to stay in the US even though they may be invaluable to their employers who have sponsored them by demonstrating that there were no US workers available for the position. Many of these skilled immigrants have graduated with degrees in science, technology, engineering and math (STEM), vital to US growth and innovation. Such skilled workers are generally on H-1B visas, but many are on other nonimmigrant visas such as the L visa too. Even though they are able to extend their H-1B visas beyond the six year limit while waiting for the green card under provisions in the American Competitiveness in the 21^st Century Act (AC21) (and many are already past 10 years on the H-1B visa), they are generally bound to the same employer during the green card process and their spouses cannot work. If their children turn over 21, they lose the ability to remain on the H-4 dependent status and most likely will also be unable to derivatively get the green card along with the parent.

The passage of H.R. 3012 has been met with jubilation by Indians and Chinese, but those from the rest of the world may not be so happy. While Indians and Chinese may still need to wait, the waiting times will get more tolerable, but others who did not have to wait in the EB-2 will now need to wait. While it is hard to predict, there may eventually be waiting times of 1-2 years for all countries in the EB-2. While everyone in the EB-3 is subject to unreasonable waiting times, upon the elimination of the per country limits, Indians may still need to wait but it will not be for 70 years. Instead, it may be 10-12 years for all EB-3 nationals, according to the NFAP report. Those who have priority dates prior to November 2005 in the EB-3, according to the NFAP report, will need to wait only 1 to 2 more years instead of an additional torturous 11-18 years. While waiting times for Indian and Chinese may likely lessen, waiting times for all others may go up in both the EB-2 and the EB-3.

H.R. 3012 is thus not a perfect bill. It also has to be passed by the Senate before it becomes law, and there is an identical version introduced in the Senate. At present, Senator Grassley (R-1A), who has been a foe to skilled immigrant from India, including H-1Bs used by Indian IT companies, has placed a hold on legislation in the Senate. Senate procedures allow any member of the Senate to place such a hold on legislation, and it is uncertain whether Grassley will release his hold in the near future, although he is being persuaded to do so by colleagues and advocates. What is so significant about H.R 3012 is that it received bipartisan support and that too by a landslide, especially in a time when such bipartisan support on other measures is rare or non-existent. The easy passage of H.R. 3012 also shows that there is concern about the unfairness and imbalance in the system towards certain countries, especially India and China. Indeed, although the country limits were originally enacted for all countries, it has resulted in invidious discrimination within the immigration system for Indians and Chinese.

Things may work out better than expected if H.R. 3012 became law, though, as we have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because AC 21, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand in the EB outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today. The notes in the January 1, 2005 Visa Bulletin, when there was retrogression in the EB-3 for the first time after AC21, explains it all.

In conclusion, even if H.R. 3012 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness.

The words of Justice Jackson ring true with respect to H.R. 3012 too:

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (concurring opinion).

Of course, H.R. 3012 ought to be viewed as a first baby step towards more comprehensive immigration reform. Even if it does become law, and skilled immigrants continue to wait, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities. If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to EB immigrants, Congress can exempt certain people from the numbers such as graduates with STEM degrees, or better still, dependent family members. Such carve outs too could restore further balance and integrity to the US immigration system.