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Immigration Backlogs are Separating American Families

In our immigration law, our country has made it a priority for families to be together.  In recent years, however, growing backlogs in our immigration system, along with barriers to family unification erected by laws passed in 1996, have kept families separated for many years, and in some cases have split families apart. 

Categories of family immigration and limits on the number of immigrants from a given country
Our family immigration system places people who want to immigrate to the U.S. into visa categories (most with numerical limits) according to the closeness of the relationship and the citizenship status of the U.S. family member. 

As the table above shows, there is no numerical cap for spouses, unmarried minor children, and parents of U.S. citizens.  This category is called "immediate relatives of U.S. citizens."  For all other relations, however, there are strict limits on the total number in each category.  All "immediate relatives" plus all of the family preference categories must fit within an overall ceiling for family-based immigration of 480,000, but this ceiling can be exceeded due to the fact that there is a "floor" of 226,000 for the family preference categories (non-immediate relatives) coupled with the fact that immediate relatives are not capped.  (So, when immediate relative immigration is more than 254,000 (480,000- 226,000), the overall ceiling is "pierced.")  For many years now, there have been no more than 226,000 visas allocated to the family preference categories, because immediate relative immigration has been more than 254,000 per year.  This is the heart of the backlog problem with family preference immigration. 

In addition to these category limits, the ceiling on the number of people we allow in from any one country is approximately 25,600.  This ceiling includes immigrants in the family-preference categories and immigrants who are coming here through the sponsorship of an employer.  There are some exceptions to the per country limits. 

Two kinds of backlogs

There are two kinds of backlogs.  At the end of the immigration process, when an immigrant visa is available to the immigrant, there may be an administrative backlog due to the fact that the immigration service may not have sufficient resources to handle its workload.  Delays in the process of adjudicating the permanent resident visa, or "green card," have recently been as long as two years.  These backlogs can be dealt with by giving the immigration agency more resources to handle its workload.

However, the more serious problem-often confused with the administrative problem-is the much longer backlog that has developed because the number of visas available by law each year is less than the number of prospective immigrants getting in line to wait for a visa.  This problem cannot be solved by making the immigration agency more efficient, but will only be resolved by reforming our immigration system so that the number of visas available better meets demand.

Priority dates and backlogs

An immigrant begins the process of joining his or her family member in the U.S. when the family member submits a petition to the government.  The filing of that petition establishes a priority date, holding the immigrant's place in line.  The State Department keeps tabs on whether or not there are visas available within the category and per-country limits.  If there is no backlog, an immigrant visa (or "green card") is immediately available to the immigrant, and the immigrant will receive one as soon as the government processes the application.  In the application process, checks are performed to make sure the individual has no criminal history, is not a security threat, and is otherwise not inadmissible as an immigrant to the U.S. 

In recent years, however, the number of visas available in our family immigration system has not met the demand.  Except for the spouses, children, and parents of U.S. citizens, for which there are no per-country or category ceilings, there are backlogs in all categories of family-based immigration.  Each month, the State Department publishes a table showing the availability of immigrant visas relative to their priority dates.

For example, as of January 2005, a wife, husband, or child of a U.S. Lawful Permanent Resident is only now receiving a visa if his or her priority date was earlier than October 1, 2000-that is, after a wait of more than four years (longer for those coming from Mexico).  A U.S. citizen who petitioned for a sibling is only now being rejoined with that sister or brother after a wait of more than 12 years.  If that brother or sister is coming from the Philippines, the wait has been more than 22 years.  For most countries, the adult unmarried children of U.S. citizens are only now getting their visas if their U.S. citizen family member filed a petition in January 1998 - a backlog of more than seven years. 

The current State Department projections of the backlogs may actually understate the wait an immigrant will eventually have.  For reasons having to do with the ability of the government to keep up with the demand for "adjustment of status" cases, the "current" priority date may actually go backwards from one month to the next.  For example, in May 2001, the priority date for which visas were being allocated for the category of adult children of U.S. citizens was March 1, 1999.  By July of 2001, the priority date had actually receded to January 1, 1997.

Backlogs are so long that immigrants are often moving from one long line to a longer line as they age or get married while waiting for an immigrant visa.  The minor child of a legal permanent resident, for example, may become an adult during the course of the five-year wait for an immigrant visa.  When that child becomes an adult, he or she gets shifted to another line, for the category of adult children of permanent residents, where the wait may be longer for that individual. 

Given that we have already decided, in the structure of our immigration law, to make family unity a priority, it does not make sense to have an outdated quota system that keeps families separated for many years.  If we as a nation continue to believe that it is important to keep families together, then we must reform our immigration system so that the category and per-country limits that we now have on family-based immigration meet our needs.

Current law regarding family unification should be updated

The emphasis we place in our immigration law on the reunification of families makes sense in terms of helping our newcomers adapt to their new home. Family members help each other adjust to their new surroundings by pooling resources and sharing responsibilities (for example, for the care of children or elderly parents). 

The inability to bring family members makes it harder for U.S. companies to attract the workers they need.  Workers who do come may be less productive if forced to endure a long separation from their families. Additionally, immigrants coming to the U.S. as a result of family ties also get jobs and become valuable contributors to our economy.  Finally, strong families help stabilize communities. 

As the backlogs grow, an increasing number of American families are facing the choice of remaining separated for several years or keeping the family intact by entering illegally.  The backlogs are also yielding consequences contrary to some of our other policy goals.  For Filipinos, for example, becoming a U.S. citizen may mean a longer separation from adult children.  The backlog for the adult children of Filipinos who become citizens is longer than the wait to bring in adult unmarried children of permanent residents.  As a practical matter, reuniting with family in this case may mean postponing citizenship.

Congress has begun to take small steps to reduce the burden of family separation

The 106th Congress began to address the harsh consequences of the backlog problem.  As part of the Legal Immigration Family Equity Act (LIFE Act), the minor children and spouses of U.S. Lawful Permanent Residents who had been waiting more than three years for an immigrant visa were given the opportunity to apply for a new temporary visa (a "V visa") that allowed them to come to the U.S. and stay and work here until their permanent immigrant visa became available.  However, these visas were available for a limited time only.

The 107th Congress acted to protect the children of U.S. citizens from the immigration consequences of turning 21 while waiting for the government to process the immigrant petition filed by their parent.

Congress should make comprehensive changes to speed the reunification of families

Much remains to be done to reform our laws to speed family unity.  Immigrants in the family preference categories must wait at least four years to be legally reunited with their families.  Updating our family immigration laws will reduce the pressure for family members to migrate outside of legal channels.  By creating wider legal channels for immigrants to come here, the number of people who come illegally will be reduced or eliminated.

There are a number of things Congress could do to alleviate the backlogs and their consequences. 

Update the immigrant quota system:  Our immigrant quota system has not been updated in a decade and a half, despite increased demand.  There are several ways that Congress could reform the system so families are not forced to remain apart for such long periods of time.  Congress could exempt "immediate relatives" from the family-sponsored immigrant cap.  Congress could expand the definition of immediate relative to include the spouses and minor children of legal permanent residents.  (Additionally, the children of immediate relatives could also be included in the definition of immediate relative.)  This would free up visas in the limited family preference system so they could be re-allocated to the remaining categories of family-sponsored immigrants.  With these extra visas, there would be much progress in reducing the long backlog now experienced by these categories of immigrants, as the 480,000 visas now allocated to the entire family system would be reserved for:

• unmarried adult sons and daughters of citizens;
• unmarried adult sons and daughters of legal permanent residents;
• married adult children of  citizens; and 
• brothers and sisters of citizens.

Place a cap on the backlog:  Congress could provide for waivers to the per-country and world-wide numerical limits to family reunification that would be triggered when an immigrant's wait exceeded a period of time-five years, for example.  Any eligible family-sponsored immigrant who had waited five years or more would be given a visa whether or not that year's quotas had been reached.

Re-allocate unused visas from the prior year:  Even though there is more demand for visas than there are available visas, it sometimes happens (usually, because of processing delays or security screening) that some of the visas that should be allocated in a given year are not allocated.  Congress could change the law so that when that happens, the unused visas are made available the following year, outside of the per country limits.