Fixing What’s Most Broken in the US Immigration System: A Profile of the Family Members of US Citizens and Lawful Permanent Residents Mired in Multiyear Backlogs

EXECUTIVE SUMMARY

The US Department of State (DOS) reports that as of November 2018, nearly 3.7 million persons had been found by US Citizenship and Immigration Services (USCIS) to have a close family relationship to a US citizen or lawful permanent resident (LPR) that qualified them for a visa, but were on “the waiting list in the various numerically-limited immigrant categories” (DOS 2018). These backlogs in family-based “preference” (numerically capped) categories represent one of the most egregious examples of the dysfunction of the US immigration system. They consign family members of US citizens and LPRs that potentially qualify for a visa and that avail themselves of US legal procedures to years of insecurity, frustration, and (often) separation from their families.

Often criticized in the public sphere for jumping the visa queue, it would be more accurate to say that this population, in large part, comprises the queue. While they wait for their visa priority date to become current, those without immigration status are subject to removal. In addition, most cannot adjust to LPR status in the United States, but must leave the country for consular processing and, when they do, face three- or 10-year bars on readmission, depending on the duration of their unlawful presence in the United States. This population will also be negatively affected by the Department of Homeland Security’s (DHS) proposed rule to expand the public charge ground of inadmissibility (Kerwin, Warren, and Nicholson 2018). In addition, persons languishing in backlogs enjoy few prospects in the short term for executive or legislative relief, given political gridlock over immigration reform and the Trump administration’s support for reduced family-based immigration.

In this paper, the Center for Migration Studies (CMS) offers estimates and a profile based on 2017 American Community Survey (ACS) data of a strongly correlated population to the 3.7 million persons in family-based visa backlogs: i.e., the 1.55 million US residents potentially eligible for a visa in a family-based preference category based on a qualifying relationship to a household member. CMS data represents only part of the population in family-based backlogs. In particular, it captures only a small percentage of the 4th preference, brothers and sisters of US citizens.[1] However, everybody in CMS’s data could be petitioned for, if they have not been already. Among this population’s ties and contributions to the United States, the paper finds that:

• Fifty-nine percent has lived in the United States for 10 years or more, including 23 percent for at least 20 years.
• Nearly one million US-born children under age 21 live in these households, as well as 111,600 US-born adults (aged 21 and over) who have undocumented parents.
• 449,500 arrived in the United States at age 15 or younger.
• 139,100 qualify for the DREAM Act based their age at entry, continuous residence, and graduation from high school or receipt of a GED.
• Seventy-two percent aged 16 and older are in the labor force, and more than two-thirds (68 percent) are employed; these rates exceed those of the overall US population.
• Two-thirds of those aged 18 or older have at least a high school diploma or its equivalent, including 25 percent with a bachelor’s degree or higher, and 295,100 aged three and older are enrolled in school.
• The median income of their households is $63,000, slightly above the US median.
• More than two-thirds (68 percent) have health insurance, including 51 percent with private health insurance.
• Nearly one-third (32 percent) live in mortgaged homes, and 12 percent in homes owned free and clear.

The paper provides several recommendations to reduce family-based backlogs. In particular, it proposes that Congress pass and the President sign into law legislation to legalize intending family-based immigrants who have been mired in backlogs for two years or more. In addition, this legislation should define the spouses and minor unmarried children of LPRs as immediate relatives (not subject to numerical limits), not count the derivative family members of the principal beneficiary against per country and annual quotas, and raise per country caps. The administration should also re-use the visas of legal immigrants who emigrate each year, particularly those who formally abandon LPR status. This practice would reduce backlogs without increasing visa numbers.

Congress should also pass legislation to advance the entry date for eligibility for “registry,” an existing feature of US immigration law designed to legalize long-term residents. In particular, the legislation should move forward the registry cutoff date on an automatic basis to provide a pathway to status for noncitizens who have lived continuously in the United States for at least 15 years, have good moral character, and are not inadmissible on security and other grounds. In fact, Congress advanced the registry date on a regular basis during most of the 20th century, but has not updated this date, which now stands at January 1, 1972, for 33 years.

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[1] CMS’s data shows a very high percentage of undocumented persons married to LPRs. However, CMS has omitted this finding because of the comparatively low number of persons in its data that are or could be in the 4th preference backlog.