In the U.S. permanent legal immigration system, there are immediate relatives and there are preference immigrants. In this article, I will discuss the difference between the two and why it matters.
Our Current Immigration System
Our current legal immigration system is preference-based, which means we have prioritized certain types of immigrants based on, for instance, their family relationship or employment skills. The modern-day preference system has its beginnings in the Immigration and Nationality Act of 1965, which replaced the previous system that restricted immigration based on a foreign national’s race and national origin. The 1965 law was later amended by the Immigration Act of 1990 which established the current system of preferences we use today.
The Four Guiding Principles of Immigration
U.S. permanent immigration is guided by four principles, which are helpful to understanding the current immigration system. First, it is designed to encourage the re-unification of families. Second, it seeks to attract employees with needed skills who can contribute to the U.S. economy. Third, it seeks to promote diversity. Lastly, it seeks to protect refugees who are fleeing persecution in their home countries.
Worldwide Levels of Immigration
With these principles in mind, Congress established a preference system of immigrants. By statute, 480,000 immigrant visas (e.g., green cards) are allocated each year to family-sponsored immigrants, that is, foreign nationals who are sponsored by their families (not to be confused with the family preference immigrants discussed below). Another 140,000 immigrant visas are allocated to employment-based immigrants. Finally, 55,000 diversity immigrant visas are reserved for immigrants from countries who have historically low immigration rates to the U.S. Adding all these together, the total number of immigrant visas available worldwide by statute is 675,000.
In reality, however, the actual number of immigrant visas that are issued worldwide each year is much higher than that because the worldwide levels do not account for the myriad other ways that foreign nationals can get a green card.
The actual number is also higher because immediate relatives (defined as the spouses and unmarried children under 21 of U.S. citizens and the parents of U.S. citizens who are 21 or older) have an unlimited number of immigrant visas available to them.
Who are the Family-Sponsored Immigrants?
The group of family-sponsored immigrants, for whom Congress has by law allocated 480,000 immigrant visas, comprises: (1) immediate relatives (as defined above) and (2) the family preference categories. There are four family preference categories. The first is made up of the unmarried sons and daughters of U.S. citizens. The second preference category is divided into two subcategories – one that consists of the spouses and children under 21 of lawful permanent residents, and the other of their unmarried sons and daughters who are 21 and older. The married sons and daughters of U.S. citizens make up the third preference category and the brothers and sisters of adult U.S. citizens make up the fourth.
Immediate relatives are entitled to an unlimited number of immigrant visas every year. This is true even though they form part of the family-sponsored group, which is allocated just 480,000 worldwide. How do we reconcile this apparent inconsistency? By envisioning the worldwide cap for the family-sponsored group (i.e., the 480,000) as a permeable or pierceable cap, because it can be pierced to allow for the issuance of a higher number of family-sponsored immigrant visas that will inevitably result from the unlimited number allocated to immediate relatives. In 2016, for instance, immediate relatives alone got 566,706 total immigrant visas which is much higher than the 480,000 immigrant visas allocated for all family-sponsored immigrants.
Family Preference Categories
If immediate relatives get an unlimited number of immigrant visas each year, what’s left for the family preference categories that also form part of the family-sponsored group? The number of immigrant visas available to the family preference categories is determined by a special formula that I won’t get into here. Suffice it to say that because of the high number of immigrant visas that are used up by the immediate relatives in the family-sponsored group, Congress set a minimum floor of 226,000 immigrant visas for the preference categories. That means that no matter how many immigrant visas are used up by immediate relatives, the family preference categories are guaranteed at least 226,000. And, year after year, with so many immigrant visas being used up by the immediate relatives, that has been the magic number of immigrant visas available for the family preference categories.
Employment-Based Preference Categories
The 140,000 employment-based immigrant visas are divided into five preference groups which include priority workers, members of the professions holding advance degrees or persons of exceptional ability, skilled and other workers, certain special immigrants and employment-creation or EB-5 investors.
Both the family- and employment-preference groups allow for derivative beneficiaries. This means that not only the principal beneficiary but also the principal’s spouses and children under 21 can immigrate to the U.S. through the same petition.
Under the immigration laws, the foreign nationals of a single country can receive no more than 7% of the total annual family- and employment-based preference immigrant visas. This means that no single country can get more than 25,620 immigrant visas in a year.
The Effect of Our Current Immigration System on Immediate Relatives
Because they have an unlimited number of visas, immediate relatives don’t have to wait for an immigrant visa to become available before they can file for their green cards. There will always be an immigrant visa immediately available to them. That’s why, if they are inside the U.S., they can file their green card application at the same time that their U.S. citizen or lawful permanent resident family member files a petition on their behalf.
The Effect of Our Current Immigration System on the Preference Categories
Unlike immediate relatives, foreign nationals who are in the preference categories are vying for a limited number of visas that are issued each year – 226,000 in the case of family-preference immigrants and 140,000 for employment-based immigrants. This means that, unlike immediate relatives, they may have to wait a significant amount of time before they can file for their green cards.
The Effect of Our Current Immigration System's Per-Country Limits on the Preference Categories
The backlog in the preference categories is made worse by the per-country limits. Immigrants to the U.S. come in large part from a select few countries, like Mexico, China, India, and the Philippines. Yet each one of these countries is limited to 25,620 immigrant visas each year even though they send many more. Logically then, the wait times are longest for the foreign nationals from these high-sending countries. The exception to this general rule is the second family-preference subcategory for the spouses and children of permanent residents, which currently has no wait times even among foreign nationals from Mexico, China, India and the Philippines. What accounts for this difference? Well, of the 226,000 family-preference immigrant visas, most of these – about 87,934 -- are allocated to this subcategory. That’s more than any other family-preference or employment-preference category. Additionally, more than three-quarters of the 87,934 immigrant visas allocated to the spouses and children of permanent residents are exempt from the per-country limits.
The Effect of Derivatives on the Preference Categories
Derivatives also play a role in the wait times we currently see among the preference categories. The derivative spouses and children of principal immigrants reduce the total number of available immigrant visas in the family and employment preference categories. So, for example, in 2017, 65,649 foreign nationals were admitted in the category for brothers and sisters of U.S. citizens but only 22,611 of them were the actual brothers or sisters of U.S. citizens. The rest were their derivatives – i.e., the spouses and children of these brothers and sisters. That means that the actual brothers and sisters of U.S. citizens who did not get their immigrant visas that year now have to wait longer. The brother and sister category is consistently one of the slowest-moving.
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