The election is over.
Time to get back to work.
Back to immigration reform.
Real immigration reform.
Let’s start with family unity.
Stopgap Politics: I-601 Hardship Waivers
I learned in late October, in my role as San Diego immigration lawyer, government officials expect to publish the final rule on I-601 provisional waivers by end of this year.
Better late than never.
Hatched back in January, the proposal was quickly labeled as “Family Unity” by ardent Obama supporters.
With his re-election, we’ll soon find out if the proposal deserves such a lofty billing.
Perhaps the president has been purposely sandbagging the issue of family unity, and we’re about to enter a period of unprecedented positive immigration reform.
I’m not holding my breath. But I wouldn’t mind being wrong.
At the present time, one thing is clear about the I-601 guidelines. Unless there are substantial changes made to the original proposal, it’s not Family Unity.
Just like DACA is not the DREAM Act.
This time, without the election hanging in the balance, I hope the president’s supporters refrain from articulating exaggerated endorsements.
Such actions are a disservice to the quest for real immigration reform.
What Is Family Unity?
In short, family unity is the foremost principle underlying immigration law.
The concept rests upon a realization that families are the bedrock of society. In a nation of immigrants, such as ours, laws that bring immigrant families together provide emotional, psychological, economic, and social stability to local communities.
Family unity was codified in 1965 when Congress passed the Immigration Act – legislation crafted to eliminate a national origin quota system favoring European immigrants over those from other parts of the world.
The 1965 Act created a “family preference” quota system.
By allocating visas based on family sponsorship, the legislation promoted not only country of origin diversity, but also unification of immigrant families.
How The Family Unity System Works
Family-based immigration is divided into two categories.
Immigrants who fall under the first category are classified as “immediate relatives.” This category includes the spouses, minor children (unmarried and under 21), and parents of U.S. citizens.
Curiously, when the family unity system was enacted, other close relatives of U.S. citizens – children over 21, children under 21 who are married, brothers and sisters – were not classified as immediate relatives.
Instead, they were placed in the second category, commonly known as the “family preferences” system.
The family preferences system divides eligible immigrants into four distinct groups:
- First Preference: Unmarried children, over 21, of U.S. citizens.
- Second (2A) Preference: Spouses and unmarried children, under 21, of lawful permanent residents.
- Second (2B) Preference: Unmarried children, over 21, of lawful permanent residents.
- Third Preference: Married children of U.S. citizens.
- Fourth Preference: Brothers and sisters of U.S. citizens.
What’s the biggest difference between those in the “immediate relatives” category vis-a-vis the “family preferences” category?
Immediate relatives are not subject to a quota. This means there are no limits on the number of green cards that can be issued to immediate relatives of U.S. citizens.
On the other hand, there are annual limits on the number of immigrants who can receive green cards via the preference system.
Moreover, each of the four preference system sub-categories have a different quota.
Complicating matters further, only 7% of all preference category visas can be given to immigrants from any one country.
This produces a jughead system.
If you multiply 7% by just 15 countries, it equals 105%, more than the 100% of all visas available for all nations worldwide.
With over 180 nations, if each country sought their maximum total of visas in a given year, this would equal over 1,000%.
In short, the 7% limit per country is only an allowable maximum, not a guaranteed number, of visas available to that country.
This means even if immigrants from a particular country have not used up their country’s 7% for 2012, they can still end up on a waiting list for the next year.
Many immigrants who entered the U.S. without permission face a unique problem.
When they seek to become permanent residents, they must return home for their interviews.
If they have been unlawfully present in the U.S. for 180 days, once they leave the United States, they are inadmissible for three years. They are subject to a three-year re-entry bar.
If they have lived here unlawfully for one year, and they depart, they are subject to a ten-year re-entry bar.
This process places them in a Catch-22 situation.
They must leave the U.S. to interview for their green card abroad. Yet, as soon as they leave, they are barred from re-entering the U.S. for three or ten years.
They can seek forgiveness for living here without authorization. This is done by requesting an I-601 waiver of inadmissibility at the consulate in the applicant’s home country.
Under current law, this waiver is available to immigrants who prove that if they are denied admission back to this country, it will cause extreme hardship to their U.S. or lawful permanent resident spouses or parents.
Cracks In The Family Unity System
One of the keys to successful immigration reform is revamping the family unity system, especially the family preference component.
In a nutshell, here’s how the system works:
- Family members residing in the U.S. apply for their relatives living abroad. If the sponsoring family member falls within the “family preference” category, the relative’s ability to immigrate depends on the system of quotas for family-based visas.
- Over time, the quota of visas available to immigrants in the family preference categories has not kept up with the demand for requested visas. Since the system is based on a “first come, first served” process, newer applicants are placed in a waiting line.
- Every year, the waiting lines have grown longer. The country quotas have remained static, even though immigration patterns, among various countries, have changed
- This has led to a huge backlog of immigrants waiting to reunite with their family members, especially those from countries with greater ties, and hence greater migration flows, to the United States.
- Immigrants from four countries – China, India, Mexico, and the Philippines – experience the longest waiting periods. Their waits are directly linked to the limits imposed on the amount of visas granted per country. For instance, a Mexican child over 21 of a U.S. citizen or a Filipino brother of a U.S. citizen must wait 15 – 20 years to complete the immigration process.
- Lawful permanent residents, attempting to sponsor their relatives, are less fortunate than U.S. citizens. Many of them, after having waited several years to enter the U.S. legally, precede their spouse and children in order to find work and save money. Since their sponsorship falls under the family preference system, quotas and backlogs can delay the reunification with their relatives for more than a decade.
- These sorts of deficiencies often cause immigrant families to despair and resort to entering without permission, rather than wait countless years for legal admission. Some estimates show 50% of the 11 million immigrants living in the U.S. without proper authorization have been approved for family-based visas but are trapped in the preference category backlog.
- This breakdown in the family unity system, coupled with the government’s inability to forge a plan for comprehensive immigration reform, has inspired a misguided deportation policy. Almost 400,000 immigrants per year have been removed from the U.S. since 2009.
When the family unity is stripped down to its essentials, as above, various solutions emerge.
Increasing the amount of family visas, redefining family preference categories, placing caps on waiting times, and adjusting per country visa limits are just a few which come to mind.
No More Excuses For Half-Baked Immigration Solutions
So who does the proposed I-601 waivers help?
Unfortunately, only immediate relatives of U.S. citizens can seek I-601 hardship waivers. (No guarantees for success, of course.)
Family members of U.S. citizens who do not fit within the definition of immediate relatives are not eligible.
Likewise, all family members of lawful permanent residents are excluded.
In my view, by failing to include so many relatives of U.S. citizens and lawful permanent residents, the original I-601 proposal misses its mark.
A huge amount of immigrants, perhaps a majority, negatively affected by the three and ten year bars are accorded no relief.
Such truncated stopgap measures are no longer politically justifiable – if they ever were – now that the president has been granted four more years to keep his promises to immigrant communities.
In my perspective as a green card attorney, the proposed I-601 changes, at best, are a dim reflection of true family unity.
Despite the fears of immigration reform opponents, family unity has been part of our national tradition long before the government established restrictions on immigrants entering the country.
It’s time to restore this heritage.
It’s time to get back to work.