More than two years ago, I posted on the topic of immigration to the USA and how it surges to the forefront of national political debate every four years. And here we are again. President Bonespurs is waxing as eloquent as he can about how we need a wall atop the southern border to “make the country safe.” Apparently he really believes that a wall will keep out people from what he called “shithole countries” (Or was it “shithouse countries”?) from setting their contaminating feet inside the USA. But that is a topic for another discussion. Hint: no wall will stop illegal border crossings. Banks have walls and locks and alarms and guards and more–and they still get robbed. This time I want to talk about immigration under the law, not about trying to put barriers around the country.
(Disclosure: In my career in the US State Department, I held primarily held positions as a Consular Officer: Vice Consul, Consul, or finally, Consul General. Consular Officers are designated to review the eligibility of applicants for immigrant or nonimmigrant visas. I saw many thousands of such applicants in my tenure, so I do speak from experience.)
DRY, BORING FACTS: BEAR WITH ME
Legal immigration to the United States is governed by a series of laws passed by Congress, most prominently the Immigration and Nationality Act of 1952 (otherwise known as the McCarran-Walter Act) and the Immigration and Nationality Act Amendments of 1965 (the Hart-Celler Act), and various amendments to these basic platforms. Under the provisions of these acts, the basis for a citizen of any other country on earth to become an immigrant to the United States may result from his/her familial relation to some American citizen or legal permanent resident; from his/her qualifications to perform some work designated by the immigration laws; or, in a relatively small number of cases, by a determination that he/she qualifies under circumstances defined in those laws as meriting refugee or asylee status.
US citizens may file immigration petitions for their relatives; i.e., if you are a US citizen, you may request that the US government allow the entry into the country as an immigrant anyone who, by the definitions of the laws, qualifies as your spouse; your minor child (including your adopted minor child); and your parent (if you are at least 21 years old at the time of filing). Those categories are not subject to numerical restriction. Subject to numerical limits, US citizens may file petitions in favor of their adult children (denominated in the law as “sons” or “daughters” to distinguish them from minor children), whether married or unmarried, and for the US citizen’s brothers or sisters. In some of these categories, the person for whom the petition is filed, if he/she has his/her own spouse or children, they may also be included as derivative beneficiaries.
A US Legal Permanent Resident (often popularly called “green card holders”) may file similar petitions in favor of relatives, but not as many: spouses, minor children, and unmarried “sons and daughters” (the definition of son or daughter is the same as for the relatives of American citizens). In some cases, such a son or daughter who has a child of his/her own may have such child included as a derivative beneficiary.
The regulations for employment-based immigration are complex and ever-evolving, but those admitted as employment-based immigrants constitute about 125,000 individuals annually, and are mostly people who are already in the United States, working under various temporary, nonimmigrant visa statuses. In a recent year, 86% of all persons admitted as immigrants in employment-based categories became immigrants via this “adjustment” process, administered by the US Citizenship and Immigration Service rather than by the State Department. Employment-based immigrants may range from professional athletes and entertainers to medical doctors to eminent scientists, etc.
Finally, an annual numerical restriction on preference-based immigrants requires a “priority” to be assigned to all such immigrant candidates. Current law fixes a ceiling of 625,000 such immigrants annually in such categories, and no more than 7% of this annual figure may be allotted to any single country–or, 43,750 total preference immigrants from a single national source. So a de facto hierarchy of candidates for immigration exists. The son/daughter of a US citizen moves in the queue (in general, though not universally) more rapidly than a spouse of a legal permanent resident, and the brother/sister of a US citizen is assigned a low priority, i.e., few visas are available in that category annually, meaning that the wait time is long from petition filing time to the time when the beneficiary may present himself/herself for application for determination of immigration eligibility. And then, he/she may be found ineligible because of several factors: criminal records, previous immigration violations, or the inability of the petitioner to offer sufficient financial support to prevent the immigrant from becoming a “public charge” to the US population at large–as in, we do not (knowingly) import welfare cases.
The priority system with a national ceiling also means that, depending on the nationality of an applicant for immigration to the US, he/she must wait until a visa number is available in the applicable category and the applicable nationality. An illustration of how this works to the disadvantage of some applicants is as follows: because numerous Filipino immigrants have naturalized as US citizens, they have become able to petition for their siblings to follow them to the United States, but in a low-priority category to which few visa numbers are allotted annually. Thus, an applicant from that country in that category will one day get the call–but the wait time is extraordinary: over twenty years. I reiterate: close family members of US citizens (spouses, minor children, and parents) are classified as “immediate relatives” and not subject to such numerical restrictions, and they often, depending on how fast they comply with US government requests for documents, medical exams, etc., granted immigrant status within a year.
Whew… Now that you understand all that, we can talk about…
“If a US citizen marries a foreigner, the foreigner becomes a US citizen, too…right?” Wrong. The US citizen MAY then file for the immigration of the spouse, but that immigrant petition is a benefit to the US citizen. If he or she does not file, the non-US spouse has no independent right to immigrate. (If the US spouse dies before a petition can be filed, there can be an exception, but this is vanishingly rare.)
“Visa issuance is on a quota system.” In the case of most nonimmigrant visa issuance, there is no minimum, no maximum, no daily and no annual restriction. (“H” visas for temporary workers are annually restricted by legislation.) For immigrant visas, there is an annual maximum figure encompassing all preference categories, though that figure is routinely exceeded for several countries if the “Immediate relatives of US citizens” numbers are considered. Some countries never approach the annual immigrant ceilings at all.
“Immigrants come to this country and immediately go on welfare.” This is a tricky one. Regulations covering visa issuance preclude allowing an immigrant to receive an immigrant visa if the petitioner does not establish (including furnishing tax returns) the ability to provide financial support. There are also Stateside restrictions on the able-bodied from receiving payments under several federal programs. State laws, however, are different in different places, and may allow direct or indirect benefits under other than federally-funded welfare programs, leading persons with an agenda to make such claims of “welfare fraud.” It’s not possible to sort this out completely from here.
“Foreign countries are sending their undesirables here.” This is actually a two-part claim. Part one is that persons “undesirable” to the US public interest are coming to the United States. The answer is that all immigrants are screened for criminal records both in the United States and in their home countries, including by fingerprints. Those with any serious criminal history are turned away (though some may apply for waivers of ineligibility, depending on the demonstrated hardship to the US petitioner). Will some bad ones slip through? Probably, though recent advances in cooperation between US law enforcement and other national and international law enforcement make this less likely today than in yesteryear.
Second comes the claim that foreign countries are sending such undesirables to us. This is so far from true that it should not need to be rebutted. The US government does not inform foreign governments in general of the intent by any person to immigrate to the United States; thus, foreign governments are not consulted as to who applies for US immigration, and they have no voice in such decisions, except in the narrow circumstance that they might prevent someone from leaving his home country for whatever reason. They do not send anyone. Nonetheless, President Bonespurs continues to assert this, citing no source, so it is probably some such reliable authority as “Fox and Friends” or Alex Jones, the conspiracy theorist.
” ‘Chain migration’ must be stopped.”
“Chain migration” is a term tossed about by certain think tanks, most of whom identify as “conservative” to describe family-reunification based immigration, which may allow several members of the same family to immigrate by virtue of a single original “anchor”. The President has lately taken to echoing the refrain. OK, but the law prescribes the mechanism to be applied to immigrant classification as favoring the reunification of family members. There are a lot of problems with it, but do we as a country want to come down as opposed to the concept of the reunification of families? Congress made the law, Congress can change it. Why can’t it be discussed and debated, leading to rational changes?
“The ‘visa lottery’ must be abolished!”
Well, OK. The diversity visa lottery was established in 1990 to allow people from countries not well represented in the US immigrant population to “take a chance” on immigrating to the US. People from countries like Mexico, India, or the Dominican Republic are not included in the applicant pool, since these countries are very well-represented in the immigrant stream. Unlike many of my former colleagues, I am somewhat fond of the program, since it allows people from almost anywhere who have the old idea of “I want to go to America for a better future” and have not gone to the extent of looking to marry an American just to get here. In the lottery, all participants are entered in an annual pool, and 50,000 eventually make it to this shore. Winners must have at least a high school education or the equivalent in work experience. A couple of bad apples does not make the whole program bad. Nonetheless, this is also a Congressional mandate, and they can abolish it, if they see fit, in their collective wisdom, to do so .
Is a Better System possible? Sure! I’ll talk about that in my next post.