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NUCLEAR Family Immigration

Immigration supports a national interest in promoting strong and intact nuclear familiesthat is, the basic social unit consisting of parents and their dependent children living in one household. Immigration contributes to this national interest by permitting the

unification of close family members of U.S. citizens and permanent residents. Immigration policy also can contribute to the strength of U.S. families by ensuring that immigrants receive any needed financial support from their own relatives and, thus, pose no financial burdens to the taxpaying public.

Family immigration presently is allotted 480,000 admissions per year. IMMACT established a transitional period for family-sponsored immigration that permitted an annual allotment of 465,000 from

FY 1992 to 1994. This category permits the immigration of a number of family members, including: spouses and minor children of U.S. citizens; parents of U.S. citizens; unmarried adult children of U.S. citizens; spouses, minor children and unmarried adult children of legal immigrants; married children of U.S. citizens; and brothers and sisters of U.S. citizens. The first two groups, the spouses and minor children and parents of U.S. citizens (referred to as immediate relatives), may enter without regard to numerical limits. The remaining family members are subject to annual allocations of numbers, with the overall number not to be less than 226,000 per year. In addition to the continuing allocation of numbers, IMMACT authorized up to 55,000 visas per year during FYs 1992-1994 to augment the admission of the spouses and minor children of illegal aliens legalized under the Immigration Reform and Control Act [IRCA].

Because of the 226,000 floor on the admission of numerically restricted family immigration, the nominal "cap" of 480,000 can be "pierced." This occurs if the number of unrestricted immediate

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family immigrants exceeds 254,000 (480,000 for overall family immigration minus the mandated floor of 226,000 for restricted family immigration).

In addition to the cap on family immigration being "pierceable," it is also "flexible"that is, if the number of immediate relatives plus the number of family preference numbers is less than the yearly allocation, the unused family preference visas from the year will be added to the employment-based preference total the next year and vice versa, depending on visa demand. However, due to oversubscription

and large backlogs in the family categories, no visas have or

are expected to be left over for transfer to the employment-based preferences.

In FY 1994, 460,000 family members obtained legal permanent residence, divided as discussed below.

n Immediate Relatives of U.S. Citizens. The number of immediate relatives entering in FY 1994 showed a modest decline from previous levels, mostly attributed to a drop in the number of parents of U.S. citizens who entered. The total number of immediate family members was just less than 250,000. Spouses and minor children of U.S. citizens numbered 190,000, and parents numbered 56,000.

n Unmarried Adult Children of U.S. Citizens (FB-1). The

FB-1 limit is 23,400 visas, plus any unused numbers from the siblings of U.S. citizens (FB-4) category. This was reduced from the previous limit of 54,000 because Congress recognized that this category has always been underutilized

(averaging 11,000 in the second half of the 1980s) and that annual increases have been low. In FY 1994, about 13,000 immigrants entered in this category.

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n Spouses, Minor Children, and Unmarried Adult Children of Permanent Residents (FB-2A and FB-2B) and Legalization Dependents. This category includes family members unable to obtain permanent residence when their spouse or parent immigrated (for example, the families of illegal aliens legalized under IRCA) and spouses and minor children acquired after immigration. IMMACT increased the family second preference allotment from 70,200 plus any unused first preference numbers, to at least 114,200 visas plus unused FB-1 numbers. In FY 1994, 115,000 immigrants were admitted in FB-2A and FB-2B. An additional 34,000 spouses and minor children of legalization petitioners also entered in FY 1994.

n Married Children of U.S. Citizens (FB-3). IMMACT lowered the annual visa limit from 27,000 to 23,400 (plus any unused FB-2 visas), which was about the average for this category in the latter part of the 1980s. In FY 1994, about 22,000 immigrants entered in this preference.

n Siblings of U.S. Citizens (FB-4). IMMACT essentially maintained the 65,000 visas in this category (adding any unused FB-3 visas). About 62,000 immigrants were admitted in

FY 1994.

Current immigration policy fails to prioritize family relationships, permitting lengthy separations of some of the closest family

membersspouses and minor childrenwhile less close relatives

continue to enter. As one scholar (Keely 1995a) testified to the

Commission:

The current preference systems do not provide preferred access to visas to members of higher preference categories. They provide guaranteed access up

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to a certain number (with a possibility of larger access through spilldowns). The higher preferences do not necessarily have access to a larger number of visas nor are they necessarily the primary beneficiaries of spilldowns of unused visas from under-

subscribed preference categories. As a result, the current 'preference systems' for family and occupational skills lead to backlogs or waiting lists. Furthermore, they do not lead to the desired outcome of articulated or implicit policy goals.

That the lack of prioritization has profound consequences became apparent through other testimony heard by the Commission. In written and oral testimony before the Commission, Rajesh Jha (1995), representing the Professionals for Spouse Reunification, explained that when a permanent resident of the U.S. marries someone residing outside this country, the nonresident spouse has to wait for over three years for an immigrant visa. During this long wait, the nonresident spouse is invariably denied a visitor visa to visit the U.S. resident spouse. Since the permanent resident spouse is usually gainfully employed in the U.S., he cannot visit the nonresident spouse frequently or for extended durations without jeopardizing his job and hence his income. This situation leads to a long separation of the newly married persons, inflicting on them immense hardship and mental agony.

The Commission recommends a prioritization of family relationships to determine who will be admitted through family-based

immigration, with admission numbers going to those who are of the highest priority. Only to the extent that visas are available after the demand in higher priorities is met should visas be made available to lower priorities.

The Commission recommends

a prioritization

of family

relationships

to determine

who will be

admitted.

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This proposal differs from current policy that guarantees some visas for all immigrant categories while failing to provide sufficient visas for high priority categories. The current system guarantees reserved numbers of visas to lower priority categories that, in some cases, exceed those available for higher priority categories. Under the Commission's recommendation of a true priority system, all of the available visas will go to the highest priority until that demand is met; only then would visas spill down to the next lower priority, and so forth. The priority system would operate on a rolling basis. Each month, visas would be allocated in priority order. Applicants not accommodated in lower priorities because the demand in higher priorities used up the monthly allotment of visas would be carried over to the next month.

Based on current annual demand, 400,000 visas should be sufficient to allow the expeditious entry of what the Commission has determined to be the highest priority relatives, once backlogs have been cleared [see below].

Following this reasoning, the Commission further recommends:

n The spouses and minor children of U.S. citizens should continue to be admitted as the first priority. Also to be admitted under this priority are the small number of adult children dependent on U.S. citizen parents because of a serious mental or physical disability. Spouses and minor children have always been given priority in the family immigration system. The Commission recommends continuing this tradition by making them first priority within the recommended priority-driven system. Under this system, all spouses and minor children of USCs will be admitted before persons in any other priority category. The Commission recommendation reinforces the common view that spouses and minor children are the most intimate of family relationships

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Chart 7.

Family-Based Immigration:

Categories and Admission Numbers

CIR RECOMMENDATIONS

CATEGORIES ADMISSIONS ADMISSIONS

(Transition) (Core)

First priority up to 400,000 400,000

Spouses/Minor (current

Children of USCs usage about

200,000)

Second priority 400,000 400,000

Parents of USCs less number less number

admitted admitted

under first under first

priority priority

(current

usage about

55,000)

Third priority 400,000 400,000

Spouses/Minor less number less number

Children of LPRs admitted admitted

under first under first

and second and second

priorities priorities

plus 150,000

for backlog

clearance

TOTAL 550,000 400,000

Source: U.S. Immigration and Naturalization Service, Statistics Division

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CATEGORIES USAGE

(FY 1994)

Unlimited

Spouses/Minor Children

of USCs 193,394

Unlimited

Parents of USCs 56,370

First Preference

Adult Unmarried Sons/

Daughters of USCs 13,181

Second Preference 115,000

2A-Spouses/Children of

LPRs (88,673)

2B-Adult Unmarried Sons/

Daughters of LPRs (26,327)

Third Preference

Adult Married Sons/

Daughters of USCs 22,191

Fourth Preference

Brothers/Sisters

of USCs 61,589

TOTAL 461,725

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and, thus, deserve admittance before any other family member. This policy also reinforces the notion that citizenship confers additional benefits on those who become fully participating members of our polity.

Spouses include any person who is legally married to a U.S. citizen. Historically, admitted spouses have been mostly female (60 percent in FY 1994), although in the early 1980s there was a noticeable increase in male admittances. Male admittances dwindled, however, after the 1986 Marriage Fraud Amendments became law. The majority of admitted spouses are under thirty-five years of age and without a reported occupation. Those reporting an occupation (47 percent) fall mainly into three categories: operators, fabricators, and laborers; workers in professional, speciality, or technical fields; and employees in service-oriented fields.

Chart 8.³

Age of Spouses of USCs at Time of Admission: FY 1994

Age Number

10-19 3,304

20-29 74,008

30-39 46,755

40-49 13,852

50-59 4,180

60 + 3,148

Total 145,247

Source: U.S. Immigration and Naturalization Service, Statistics Division

³Data in Charts 8-15 are derived by the INS from information the immigrant gives at the time of admittance.

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Operators/Laborers 12%

No

Occupation*

49%

Professionals 9%

Service 9%

Other/Unknown 5%

Clerical 4%

Managers 4%

Farmers 1%

Craft/Repair 4%

Sales 3%

*Includes homemakers, unemployed, retired, students, and children under age 16.

Source: U.S. Immigration and Naturalization Service, Statistics Division

California 21%

Other 34%

New York 16%

Texas 8%

Puerto Rico 4%

Florida 8%

New

Jersey

5%

Illinois 4%

Source: U.S. Immigration and Naturalization Service, Statistics Division

Chart 9.

Occupation of Spouses of USCs: FY 1994

Chart 10.

Intended Residence of Spouses of USCs: FY 1994

Operators/Laborers 12%

Managers 4%

Craft/Repair 4%

California 21%

Other 34%

Puerto Rico 4%

Florida 8%

Illinois 4%

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To enter as a minor child of a USC, an individual must be under the age of twenty-one. Many of the children admitted are under the age of fifteen; there are slightly more males than females. Of children over the age of sixteen and employed, the majority are employed in low-skill jobs as laborers, operators, or fabricators.

Chart 11.

Age of Minor Children of USCs:

FY 1994

Age Number

<5 10,799

5-9 9,723

10-14 12,125

15-19 13,089

20-24 2,409

Total 48,145

Chart 12.

Intended Residence of

Minor Children of USCs: FY 1994

California 18%

New York 19%

Florida 8%

Texas 7%

Other 33%

New Jersey 6%

Puerto Rico 5%

Illinois 4%

Source: U.S. Immigration and Naturalization Service, Statistics Division

Source: U.S. Immigration and Naturalization Service, Statistics Division

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The spouses and minor children of USCs generally come from the large sending countries, such as Mexico, the Caribbean (including the Dominican Republic), and the Philippines, and are likely to migrate to California, New York, Texas, and Florida.

Under the Commission recommendation, spouses and minor children of U.S. citizens would be allocated up to 400,000 visas, the overall family ceiling. In effect, their numbers would remain unlimited, as current usage is less than 200,000 per year. In FY 1994, 145,247 spouses and 48,147 minor children were admitted to the U.S. The numbers in this category have been increasing at the rate of about 3 percent per year. We project that there may be a substantial, but short-term, increase in this growth because of increases in naturalizations. Individuals legalized under IRCA who have petitions pending for the entry of their spouses and minor children will become eligible to naturalize within the next few years. As they become citizens, their relatives will be able to enter under this first priority category. Even with substantial naturalization, however, it is unlikely that the 400,000 ceiling would be reached even in the short-term. Once the backlog in the applications of those with pending petitions is resolved, usage of this category should revert to the pre-IRCA trendsthat is, an annual increase of 3 percent.

n Parents of U.S. citizens should be admitted as the second priority. In keeping with the Commission's dedication to unifying close family members, the Commission has made this family relationship the second priority category. The national interest is best served when children can enjoy and experience grandparents and when sons and daughters can continue their child/parent relationship. Entry of parents also has tangible economic benefits for their children and the

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broader society. For example, in many households, immigrant parents help their citizen children with child care, thereby allowing both spouses to work outside the home.

Nearly 65 percent of admitted parents are women. Some researchers attribute the high percentage to the likelihood that the parent is a widow reunifying with her children. In addition, many parents also are sixty years or older, with the largest percentage more than sixty-five. [See Chart 13].

Chart 13.

Age of Immigrant Parents

at Time of Admission: FY 1994

Age Number

10-19 6

20-29 12

30-39 112

40-49 3,767

50-59 17,055

60 + 35,417

Total 56,370

Source: U.S. Immigration and Naturalization Service, Statistics Division

INS data show that 33,000 parents admitted in 1994 are of working age (16-64 years). Of those, 21,109 (63 percent) reported no occupation at the time of entry. Chart 14 shows that many immigrant parents of working age who are employed are in low-skill jobs. Most parents of USC indicate that they intend to migrate to California, New York, and Texas [Chart 15].

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Chart 14.

Reported Occupation of Working Age Immigrant Parents: FY 1994

Chart 15.

Intended Residence for Parents of USC: FY 1994

Service

Operators/Laborers

Farmers

Other/Unknown

Professionals

Managers

Craft/Repair

Sales

Clerical

No occupation*

*Includes homemakers, unemployed, retired, students, and parents under age 16

Source: U.S. Immigration and Naturalization Service, Statistics Division

California 30%

New York 15%

Texas 8%

Other 27%

Massachusetts 2%

Illinois 5%

New Jersey 6%

Florida 7%

Source: U.S. Immigration and Naturalization Service, Statistics Division

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Under Commission recommendations, parents would receive 400,000 visas minus the number used by spouses and minor children of U.S. citizens. The Commission projects that 55,000 parents will seek to enter the U.S. each year, a number that should be accommodated given projected demand in the higher priority category. During the past decade the level of

parents immigrating has ranged from 40,000 to 65,000

annually, with admissions averaging 53,500 per year. Total admissions last year were 56,370, a noticeable decline from the previous year's 62,428. In particular, the number of entries from Asian nations was significantly reduced. There is potential for the category to increase in the coming years primarily from increased naturalizations,⁴ but the Commission believes that this increase would be offset by reduced demand because of the new affidavit requirement it is recommending [see below] as well as possible changes under welfare reform legislation now pending in Congress.

The Commission is mindful of the potential negative impacts that the entry of parents may pose for the U.S. taxpayer if these individuals utilize Supplementary Security Income [SSI], Medicaid, and similar programs. Therefore, the Commission believes that continued admission of parents should be contingent on a legally enforceable affidavit of support. The affidavit should ensure that parents who are unable to work enough quarters to become eligible for Social Security or Medicare do not become a burden to taxpayers through use of SSI, Medicaid, or equivalent state and local assistance. Further, the Commission recommends that affidavit signers (petitioners and, if necessary, coguarantors) should provide:

The Commission

believes that

continued

admission of

parents

should be

contingent on

a legally

enforceable

affidavit

of support.

⁴A study done for the Commission suggests that 252,000 parents of aliens who legalized under Section 245A, that is, those who entered unlawfully prior to 1982, intend to migrate once their child naturalizes. In addition, we have almost no information about the number and intent of the parents of the 1.1 million illegal aliens legalized under the Seasonal Agricultural Worker [SAW] program. (Woodrow-Lafield 1994)

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Verifiable assurance that they indeed have the capacity to provide what may be lifetime financial support to the immigrant parent; and

Verifiable assurance of the purchase of what may be lifetime health coverage for the immigrant parent (obtained either privately or through buying into Medicare, which the government should make available at an actuarially fair price [see below]).

In the Commission's 1994 Report to Congress, we recommended that legal immigrants continue to be eligible for publicly-funded benefit programs, but we emphasized at the same time that sponsors of immigrants should be held financially responsible for the immigrants they bring into the country. The distinction between eligibility and financial responsibility is an important one that affects not only immigrants but citizens as well. For example, a U.S. citizen child may be eligible to receive public benefits if he or she meets income criteria, but the child's eligibility does not absolve his or her parent from the financial responsibility to provide support to the child. Similarly, if a married U.S. citizen spouse is eligible for benefits under a federal entitlement program, that does not absolve his or her spouse from financial

responsibilities. This responsibility many continue after

a divorce if one spouse is required to pay alimony or

child support.

To enforce these responsibilities, public benefit programs have developed mechanisms to "deem" the income of the responsible party in an applicant's eligibility. If the income is not actually available to the child or spouse, and the financially responsible person is living in a separate household, the needy individual may obtain public aid. The benefits program may,

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however, try to recoup the public resources provided to the eligible person and require the financially responsible parent or spouse to fulfill their obligations.

The equivalent relationship in immigration policy is the affidavit of support signed by sponsors of new immigrants. The Commission recommends that these affidavits be made legally enforceable in order to ensure that sponsors do provide the support and that public benefit programs are able to recoup costs. Under current law, the affidavit has been interpreted to have moral, but not legal, force. The Commission argued in its 1994 report:

A legally-enforceable affidavit of support is a necessary complement to deeming policies. Deeming is used not only for immigrants, but for others as well, to ensure that the income and resources of legally liable individuals are taken into account when determining an applicant's eligibility for benefits.

Such a provision is particularly needed in determining the admissibility of parents, the majority of whom are beyond working age. Frequently, their admission is based heavily on an affidavit of support because they would otherwise likely become a public charge. After admission, however, many of these immigrants apply for SSI as soon as they are legally eligible to do so. Special provisions are needed for parents because their children do not otherwise have legal financial responsibility for them. The issue is less pressing for spouses and minor children because the petitioner is legally responsible regardless of the affidavit.

In recent years, the income of sponsors has been deemed for five years in SSI eligibility determinations. Unlike the sce

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nario recommended by the Commission, the deeming procedure takes into account the sponsor's income but not its availability to the immigrant. Nor are there mechanisms in place to require the sponsor to provide the support promised by the affidavit. The Commission recommends development of policies that would enable public benefit programs to determine if the sponsor's income is available to the person for whom an affidavit has been signed and, if the sponsor has failed to provide support, to enforce the sponsor's responsibility. In the meantime, needy immigrants would be able to receive aid, the costs of which could be recovered from

the sponsor.

Because of the advanced age of most entering parents, and hence the likelihood that they will become a public charge if they do not have their own financial resources, the financial responsibility assumed by sponsors cannot be time limited. The likelihood that the parent will require public aid, barring the responsibility of the sponsor, is likely to increase as the parent ages. For this reason, the Commission recommends that the affidavit apply throughout the life of the parent or, in the case of younger parents, until he or she works the forty quarters that are needed to become eligible for Social Security and Medicare benefits.⁵

Under the Commission's recommendation, the affidavit would continue to be in force independent of whether the

⁵By contrast, the requirements of affidavits for spouses and children could be time limited because most of these individuals are, or will be, of working age and can become self-supporting. Alternatively, the affidavit may be framed to ensure that the sponsor provides support for the greater of either a specified time or the duration of the family relationship. For example, a parent could be required to be financially responsible for a child until the child reaches the age of majority or for a specified number of years, whichever is longer.

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parent becomes a naturalized citizen because the sponsor voluntarily signed a contract pledging such support. As stated above, eligibility for aid and responsibility for providing support are separate issues. The now-U.S. citizen parent clearly would be eligible for public assistance, as would any other U.S. citizen, but the sponsor would still be required to fulfill the financial responsibilities specified in the affidavit. Just as a parent's responsibility for a child is not tied to the child's citizenship, the sponsor's responsibility for a parent whose entry is conditioned on a contractual arrangement specified in the affidavit should not be linked to citizenship.

The Commission further recommends that entry be contingent on verifiable assurance of the purchase of health insurance, again for the lifetime of the parent. However, if the parent becomes eligible for Medicare on the basis of his or her work history, these special provisions would not apply. Without such a health insurance requirement, immigrant parents are likely to access taxpayer financed health programs such as Medicaid or general assistance. We recognize that such a requirement may be prohibitively expensive for many families, particularly if the parent is over the age of sixty-five. The current private health care market generally lacks affordable health plans covering doctor, hospital, and long-term care services for elderly individuals. Moreover, most private long-term care policies are limited in both duration and extent of coverage. Therefore, we recommend that the government establish an option that would allow sponsored immigrant parents age sixty-five or older to purchase Medicare (parts A and B) and Medicaid long-term care insurance at an actuarially fair price.

The Commission does not intend a legally-binding affidavit of support to be a punitive measure towards either the spon

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sor who attempts to meet the requirements in good faith or the immigrant who may be financially abandoned by the sponsor. If the sponsor becomes financially incapable of providing support because of changed circumstances (the sponsor's illness, accident, death, or long-term unemployment, for example), the requirements of the affidavit would be removed until the sponsor was able to resume them. If the immigrant is abandoned, however, the legally-binding affidavit permits the immigrant to obtain help while the efforts are made to enforce the sponsor's responsibility. Thus, we see this proposal both as a mechanism to enforce the obligation and responsibility of the sponsor who has promised financial support and to ensure the protection and well-being of the immigrant. This recommendation permits the continued entry of parents because it would assure that they would not be excludable as public charges who pose a burden to U.S. taxpayers. It also protects sponsored spouses and children by enforcing affidavits signed on their behalf and by ensuring that assistance is available to them if the sponsoring parent or spouse is unable or unwilling to provide support.

Developing effective enforcement mechanisms related to the affidavit is critical to the success of this recommendation. Any future incentives to abuse or defraud the system must be avoided. Administrative procedures must then be developed to ensure that sponsors could be located and investigated and reimbursements collected should the immigrants they have sponsored become dependent upon public benefits. Unlike the current child support enforcement system that is implemented by state agencies, the affidavit would be a contractual relationship between the federal government and individual sponsors and immigrants. A number of options may be appropriate for the enforcement of affidavits,

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including a role for the Department of Justice in investigating alleged abdications of responsibility that lead to use of public benefits. Federal, state, and local programs providing cash and medical assistance could be required to report the receipt of benefits by any sponsored immigrant to the Department of Justice. This approach would establish affidavit enforcement activities within the primary law enforcement agency and avoid placing additional enforcement burdens on health and social service programs. Alternatively,

the enforcement could be undertaken by the Department

of Health and Human Services or the Social Security

Administration.

In any case, communication among these agencies would be essential. There may be data sources within the Health and Human Service systems or in the INS databases that would expedite location and investigation of sponsors who fail to meet their obligations and should be made available to the entity charged with affidavit enforcement. The enforcement mechanism should also be compatible with similar efforts on behalf of other populations. In particular, there are current proposals to expedite enforcement of child support orders and, if such proposals are enacted and they prove useful

in affidavit enforcement, they should be made available for that purpose.

n Spouses, minor children, and adult dependent children (as above) of legal permanent residents [LPRs] should be allocated third priority in the family immigration system. Spouses and minor children of LPRs are defined similarly to those of USCs except that the category currently is included under second preference and is subject to numerical limitations. Actual usage for FY 1994 was 88,673 (33,421 for spouses and 55,252 for children of permanent residents). A transition

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program for spouses and minor children of illegal aliens legalized under IRCA, which expired in 1994, admitted a total of 142,031 from 1992-1994. [Because demand in the unlimited immediate relative category exceeded 239,000 in FY 1993, less than 55,000 visas were available in FY 1994, the last year of the program].

Most spouses admitted are women (about one-third are male), with the median age around thirty. In the minor children category there are slightly more males than females, also the case for minor children of USCs.

The Commission proposes that the spouses and minor

children of LPRs be allocated 400,000 visas minus the numbers used by the two higher categories. At present, about 80,000 spouses and minor children of LPRs apply each year for admission. Once the backlog in this category is cleared (about the year 2002, see below), it should be possible to admit all of these applicants within one year of petition under the family ceiling proposed by the Commission. This scenario assumes that the number of spouses and minor children of USCs will be about 240,000 per year (a 3 percent cumulative increase per year over current levels) and the number of parents will remain at 55,000 per year. These numbers leave up to 105,000 visas for the spouses and minor children of LPRs.

The Commission further recommends sufficient additional numbers, on an interim basis, to eliminate the backlog in the category for admission of spouses and minor children of LPRs. The Commission believes an additional 150,000 visas per year will permit the elimination of the backlog within five to eight years. Thereafter, under the Commission's proposed family immigration levels, admissions should be current in this category.

The Commission further recommends sufficient

additional

numbers, on an interim basis,

to eliminate the backlog in

the category

for admission

of spouses and minor children

of LPRs.

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Despite IMMACT's elimination of per-country limitations for 75 percent of the spouses, minor children, and adult unmarried children visas⁶ and an overall increase in visas for the preference category, the waiting list for spouses and minor children of LPRs (currently family 2A) is high and rising annually. In January 1995, the waiting list for spouses and minor children was 1,138,544, up 8.7 percent from 1994 when it was 1,047,496, which was up 9.2 percent from 1993, when the backlog was 958,839. The total waiting list in recent years can be seen in the Chart 16.

Chart 16.

Waiting List for Spouses and Minor Children of LPRs:

1990-1995

Source: Department of State, Visa Office

The wait for most countries spans more than three years at present, but the waiting time is increasing rapidly. In future years, the priority date for admission will advance little each month, meaning longer and longer waits for new applicants. It is projected that a spouse and minor child petitioned for today will not be able to enter for ten years, unless the petitioner naturalizes in the interim.

Thousands

1,138,544

1,047,496

958,839

589,997

250,045

January

1994

January

1995

January

1990

January

1992

January

1993

⁶Per-country limits for immigration are 25,600 per country, per year, which is 7 percent of 366,000 (226,000 family-based plus 140,000 employment-based).

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Of the 1,047,496 spouses and minor children of LPRs on the waiting list (as of January 1994), 853,382 (81.5 percent) are spouses and minor children of illegal aliens who were legalized under the "regular" and SAW legalization programs of IRCA. The percentage of legalization beneficiaries can be seen in Chart 17 The actual percentage of spouses and children of legalization beneficiaries on the wait list for 1995 has not been calculated but is still thought to be around 80 percent of the total 1,138,544.

Chart 17.

Visa Waiting List: 1992-1995

By the end of this fiscal year, 824,000 spouses and minor children of

IRCA-legalized immigrants will be waiting for visas. The number of new applications has fallen to only a handful for this group.

However, since the applications of the legalization beneficiaries, a backlog of 279,000 (about 80,000 per year) spouses and minor children of other LPRs has developed. Most of these family members cannot enter until the legalization beneficiaries backlog is cleared. Those newly on the waiting list include two categories of petitioners.

Nonlegalization Beneficiaries

Legalization Beneficiaries

January

1992

January

1993

January

1994

January

1995

January

1996

(projected)

Source: Department of State, Visa Office

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The first category consists of those who are unmarried at the time of entry but subsequently marry. Some entered under preferences open only to unmarried applicants. Others entered in preferences that would have provided derivative status for a spouse or minor child, but the immigrant, not having been married at the time of entry, could not benefit from the provision. The second, far smaller, category consists of the spouses of the parents of USCs and/or step parents of the original applicants and their minor child or children. Unlike other immigration categories, this one does not provide "derivative status" to family members.

Because most immigration statuses do permit spouses and minor children to enter with the principal beneficiary, regular use of this category is confined to the specific groups mentioned above. The Commission believes, therefore, that this backlog, which results primarily from the Immigration Reform and Control Act, can be cleared without creating another waiting list.

The Commission believes that priority for clearance of the backlog should go first to the spouses and minor children of LPRs who themselves entered lawfully under the regular immigration preferences. Only afterwards should admission be offered to the spouses and minor children of LPRs who entered unlawfully and were later legalized under one of the provisions of the Immigration Reform and Control Act.

The Commission recommends this separate treatment of the family members of those who became permanent residents through regular immigration and those who legalized under the IRCA because:

n The circumstances are different for the two sets of spouses and minor children. Many of the families of the illegal aliens legalized under IRCA are in the United States and, under the Family Unity provisions of the Immigration Act of 1990, have

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a quasi-legal status that permits their continued presence and work authorization. Many of the families of the other legal immigrants are separated, with their spouses and/or minor child(ren) living outside of the country.

n As of December 31, 1995, most legalized aliens will be eligible to naturalize. As citizens, they will be able to expedite the admission of their spouses and minor children without using the additional visas earmarked for LPRs. A survey of aliens who legalized under the regular legalization program (not the Seasonal Agricultural Worker [SAW] program, about whom very little is known) indicates a high level of interest in naturalization. About 50 percent of the surveyed respondents indicated that they would definitely naturalize. Another 25 percent indicated that they would probably naturalize (Woodrow-Lafield 1994).

n Those legalized under IRCA already have received special treatment in obtaining amnesty. To further reward their earlier illegal entry by giving equal or higher priority to the entry of their relatives sends the wrong message at a time in which the U.S. must obtain greater control over abuse of its immigration laws.

The Commission projects that the addition of 150,000 visas will permit the elimination of the regular LPR beneficiary backlog within three years and the legalization beneficiary backlog in five to eight years. Thereafter, the entry of all spouses and minor children of LPRs should be possible within a year of application under the proposed 400,000 admissions ceiling on family-based immigration. By contrast, under current policy, there will still be a backlog of more than 200,000 spouses and minor children as of the year 2010. All current beneficiaries of petitions will have entered, but new applications will continue to accumulate [see Chart 18].

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Chart 18.

Elimination of the Backlog: Spouses and Minor Children of Legal Immigrants

THOUSANDS IN THE BACKLOG

CIR Proposal

Current Policy

PROJECTED YEAR OF CLEARANCE

Includes projected admission upon naturalization of the petitioner

Source: Department of State, Visa Office

Both the proposed Commission and current policy projections use the same assumptions about naturalization. Naturalization rates are important for the backlog clearance because the number of immediate relatives are numerically unlimited in current policy and receive first priority in the Commission's proposal. Therefore, the beneficiaries of petitioners who naturalize can move from the heavily backlogged category for spouses and minor children of LPRs to the

immediate entry category for the relatives of U.S. citizens. The Commission projections assume that the number of beneficiaries able to make this change will rise each year, beginning with 22,000 in FY 1996 and increasing by about 30 percent per year. The starting point is the estimated number before IRCA legalization petitioners became

THOUSANDS IN THE BACKLOG

CIR Proposal

Current Policy

PROJECTED YEAR OF CLEARANCE

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eligible to naturalize. Under this scenario, 40 percent of the backlog enters because of the naturalization of the petitioner, the remaining entering under either the regular preference for spouses and minor children of LPRs (both current and Commission-recommended policy) or the recommended backlog clearance (Commission-recommended policy). To expect this high a proportion of petitioners may be optimistic, but it is consistent with the large number of surveyed legalized aliens who stated their intent to naturalize. Should the rate of naturalization be lower, the backlog under current policy will be even higher than projected; if it is higher, then the backlog would be reduced more quickly than the chart's projection under current policy indicates. A lower or higher rate of naturalization will not reduce the time for the projected backlog clearance under the Commission recommendation because visas not used in the first priority (spouses and minor children of USCs) would spill down to the third priority (spouses and minor children of LPRs), thereby providing more visas for this category and an equivalent backlog reduction.

The Commission recommends elimination of other family-based admission categories, including:

n Adult, unmarried sons and daughters of U.S. citizens. Sons and daughters qualify for this category if they are over the age of twenty-one and unmarried at the time of immigration; however they could have been married previously. Currently this category is first in the preference system and there are 23,400 visas available, a reduction from the 54,000 available prior to IMMACT. Adult, unmarried sons and daughters of U.S. citizens may bring in their minor children at the time of immigration.

n Adult, married sons and daughters of U.S. citizens. Sons and daughters qualify for this third preference category if they are married, regardless of age. The annual visa limit is

The Commission recommends

elimination

of other

family-based

admission

categories.

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set at 23,400, a reduction from pre-IMMACT levels of 27,000. Married sons and daughters may bring in their spouse and minor children at the time of immigration.

n Adult unmarried sons and daughters of legal permanent residents. Sons and daughters of legal permanent residents who are over the age of twenty-one and unmarried qualify for this category. Prior to IMMACT, adult unmarried sons and daughters were included with spouses and minor children of LPRs under second preference. Currently, they have been separated into subcategories within the second preference: the FB-2A spouses and minor children; and the FB-2B adult unmarried sons and daughters of LPRs. The numerical allotment for adult unmarried sons and daughters of LPRs is determined by calculating 23 percent of the overall preference limitation. IMMACT reduced the percentage of visas allocated to the entire preference by 3 percent. In FY 1994, 26,327 visas went to adult unmarried sons and daughters of LPRs, for FY 1995, 34,500 visas are available. Adult, unmarried sons and daughters of legal permanent residents may bring in their minor children at the time of immigration.

n Siblings of U.S. citizens. Brothers and sisters fall under the fourth preference category. They may be of any age or marital status. Visas for this category are limited to 65,000 annually. Siblings of U.S. citizens may bring in their spouse and minor children at the time of immigration.

The Commission acknowledges that many individuals in these

categories have contributed to the U.S. society. Recommending the elimination of the nonnuclear family categories was a difficult decision for the Commission. We recognize that the parent/child bond does not end arbitrarily at age twenty-one. The family bond is also strong for brothers and sisters of USCs; in many cultures they are

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just as close to the petitioner as parents and adult children. However, the Commission believes that when spouses and minor children are waiting three or more years to reunite with their families and other, more distant family relatives are entering at the

same time, there is an overwhelming need for reexamination of

our priorities.

To be more specific about the reasons for eliminating these categories, the Commission believes:

n The numbers now used to admit these individuals in more extended family relationships could be used instead to reduce the waiting time for closer family members without raising the overall levels of immigration. Under current law, numbers available from the eliminated categories total 138,000. The Commission recommends that these numbers be used to clear the higher priority backlogs. Under the Commission's proposed priority system, no adult child or sibling should enter while someone's spouse and minor child is waiting.

n Unless there is a compelling national interest to do otherwise, immigrants should be chosen on the basis of the skills they contribute to the U.S. economy. While the admission of nuclear families and refugees provide such a compelling national interest, reunification of adult children and siblings of adult citizens do not reach that level.

Under current policy, skills or employability are not considerations in admissions of extended family members. To date, the differences in economic activities of family-based and employment-based immigrants have not been substantial. As one researcher testified (Jasso 1995) about immigrants who entered in 1977, "although employment immigrants appear

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more productive at admission than family immigrants, the differential narrows over time." Whether this pattern holds in the future is questionable, however. Although a significant portion of the immigrant population is highly skilled, in recent years many unskilled immigrants entered and they will be the principal sponsors of new immigrants.

n Elimination of these preferences will remove extraordinary backlogs that now undermine the credibility of our policy. By contrast, a hiatus in these categories, while the backlog of spouses and minor children is closed, would only increase already long waiting lists when applications are again accepted. Credible immigration policy should not give false hopes to applicants. Demand for visas is exceptionally high in a number of the preference categories recommended for elimination, with oversubscription leading to extensive backlogs. Per-country limitations also have intensified backlogs for some countries, such as the Philippines. Unlike the backlog of spouses and minor children of LPRs, these waiting lists are not a onetime phenomenon caused by legalization. Instead, they represent a sustained problem of inadequate visa numbers relative to worldwide or per-country demand.

The longest backlog exists in the brothers and sisters of USC preference category, where there are almost 1.6 million registrants, according to the Department of State [DOS], making up 45.5 percent of the total visa waiting list of family and employment preference cases [see Chart 19]. The huge number of people on this waiting list is not recentthe category has always been in high demand. Over the past year, the backlog has not increased at rates as high as that of previous years, yet waiting lists remain stagnant, dating back about ten years for countries with favorable visa availability and even longer for oversubscribed countries. For those from the

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Philippines, the priority date remains at June 1977. That is, petitioners who filed more than seventeen years ago are now eligible to enter. The three countries with the largest number of applicants are Philippines, India, and Mexico (Chart 19). Recent estimates by the consular posts at the DOS Visa Office are that about 30 percent of these registered applicants will drop out or not pursue their visa case.

Chart 19.

Brothers and Sisters of USC:

Visa Issuance versus Waiting List: FY 1995

Country

Phillipines

India

Mexico

Others

Total

Source: Department of State, Visa Office

Although the wait continues to grow in this category for certain nationalities, the numbers added each year to the backlog are decreasing. Officials at DOS speculate that the lengthy waiting periods are dissuading applications. Even with this wait, however, new applications could increase significantly with the naturalization of illegal aliens legalized under IRCA. A survey of those who entered in the U.S. prior to 1982 indicates that as many as 1.35 million siblings and their families would apply (Woodrow-Lafield 1994). Even with this dropout rate, however, the waiting period for a new applicant may be measured in decades [see Chart 20].

Estimated

FY 1995

Visa Issuances

4,550

9,000

6,500

44,950

65,000

Total

Applicants on Current Waiting List

282,989

207,263

153,805

947,367

1,592,424

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Years

Other Countries

Philippines

India

Mexico

Source: Department of State, Visa Office

Chart 20.

Approximate Years Needed to Provide Visas for Current

Wait-Listed Brothers and Sisters of USCs (as of March 1995)

Along with siblings, married sons and daughters of USCs are backlogged.⁷ More than 260,000 applicants are in the backlog. Prior to IMMACT, visas were available to applicants who waited about one year, with the exception of those from Mexico and the Philippines. Mexico and the Philippines had visas available to those who had waited about eight and nine years, respectively. Today, most applicants wait four years for an available visa, while the wait list for those from Mexico is thirteen years. To eliminate the back

Philippines

India

Mexico

⁷Backlogs for those from the Philippines and Mexico also exist in the preference for adult, unmarried children of USCs because of per-country limitations. Prior to IMMACT, some 29,000 Filipino applicants were on the waiting list and admittances were granted to those who had waited six years. Today some 52,000 Filipino and 4,000 Mexican applicants are on the waiting list. While visas are immediately available for all other countries, Filipinos must now wait nine and one-half years. Mexico has been oversubscribed on a continuous basis since IMMACT, although the wait is never for any long period.

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log for those from the Philippines would take decades. The heavy demand for these two countries makes it likely that the backlogs will, if anything, increase in future years. Poland also has a waiting list in this category, although it represents only about 5 percent of the total waiting list for married sons and daughters [see Chart 21].

Chart 21.

Waiting List for Adult Married Sons and Daughters of USC:

FY 1995

Country/Area Numbers on Time Percent

Waiting List of List

Phillipines 146,905 decades 56

Mexico 29,770 13 years 11

Poland 13,076 4+ years 5

Other 70,663 4+ years 27

Source: Department of State, Visa Office

Increased naturalizations also will affect this category. Data indicate that about 85,000 married sons and daughters of IRCA-legalized aliens who naturalize may be able to immigrate under this category. This figure is based on survey results regarding intent to naturalize and interest in petitioning for children (Woodrow-Lafield 1994).

Backlogs have also been prevalent for unmarried sons and daughters of LPRs (FB-2B), especially since IMMACT. In January 1995, there were 494,064 individuals on the FB-2B visa waiting list, up 9.7 percent from 1994 at 450,579. More than one-fifth of those in the backlog are from Mexico, with additional significant demand from the Dominican Republic and the Philippines. If the limit is reached each year, the

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actual wait for a new applicant would be more than eighteen years for all countries. Naturalizations of IRCA legalizations could lighten the backlog; however, the eighteen-year wait does not take into account the possible addition from the LPR spouses and minor children preference (FB-2A), of which some children "age out" of eligibility due to extensive backlogs. These children will carry over into this preference provided they remain unmarried.

The Commission heard considerable sentiments that adult unmarried sons and daughters of USCs, in particular, should be kept within the proposed priority program because they may still be dependent on the petitioner, despite their age. The Commission does recognize the closeness of the relationship and the dependence factor; however,

the retention of unmarried sons and daughters of USCs could invite fraud and other manipulations inconsistent with a credible policy. If adult unmarried sons and daughters of USCs were to remain, and the preference for married children eliminated, potential immigrants

could delay marriage or obtain divorces, and then marry or remarry

once they arrive. Having so married, they then could petition for their spouses.

The Commission proposes that elimination of these categories be deferred for one year after the date that legislation is enacted. In this way, the plans of U.S. families, whose reunification is imminent and who likely have made irreversible financial and other commitments, will not be adversely affected.

The Commission recommends amendment of Section 201(c) of the Immigration and Nationality Act [INA] to provide that otherwise unused immigrant visa numbers for a fiscal year be made available to people who have a priority date that would entitle them to processing in that year but who were not issued visas. Given the large backlog of spouses and minor children, all efforts should be made to

The Commission recommends

amendment of Section 201(c) of the Immigration and Nationality Act [INA] to

provide that

otherwise unused immigrant

visa numbers

for a fiscal year

be made available to people who have a priority date that would entitle them

to processing

in that year

but who were

not issued visas.

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ensure their expeditious entry by fully utilizing authorized visas. Under the current system, an applicant is notified by a U.S. Consulate or INS office with a set of instructions, known as Packet 3, as to what documents are necessary to qualify for the immigrant visa. This notification takes place some months before the priority date is expected to be reached to allow the alien sufficient time to secure the required documents. After all documents are secured, the applicant notifies that office and is considered "documentarily qualified." Some applicants, however, do not respond to Packet 3 because of any number of reasons: for example, personal considerations may prevent them from wishing to immigrate at that time or they may not be able to secure one or more of the required documents. As a result, not all applicants will be prepared to immigrate when a visa number is made available to them.

Visa issuing offices are required to inform the Department of State of all documentarily-qualified applicants, who are then registered on the Visa Office allocation waiting list by priority date. As soon as their priority date comes within the cutoff date, the Visa Office allocates a number to the applicant. The number must be used, i.e., the visa must be issued, within thirty days of its allocation. If not used within that period, the INA requires that unused numbers be returned to the Department of State for incorporation into the pool of numbers available for later allocation during the fiscal year. Under the current system, any unused numbers from the family category revert to the next year's allocation for the employment category, and vice versa, at the end of the fiscal year. Thus, unused family numbers from one year are "lost" to the category for which they are originally intended, but are still used for purposes of overall immigrant numbers.

Under the current allotment system, numbers, and thus visas, are sometimes difficult to secure towards the end of the fiscal year.

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Numbers within the annual limits are made available to applicants, but some are returned unused to the Department so late in the fiscal year that there is no time to permit reallocation before the end of the year. Many of these returns result from applicants not appearing for their scheduled interviews or not having all documents required for visa issuance on the scheduled date. In addition, the Department of State is often reluctant to "overbook" visas towards the end of the year because current law does not allow for allocation of numbers which exceed the yearly ceilings.

Current law also does not provide a mechanism to carry over unused visa numbers from one fiscal year to the same category in the next fiscal year. As a result, some visa numbers in the family category are unnecessarily lost in any given fiscal year when they could be used to reduce the backlog in that category. Thus, the Commission's recommendation to allow unused immigrant visa numbers to be used after the end of the fiscal year ensures that all visa numbers for applicants who qualify for immigrant visas in a given year but who, for personal or other reasons are unable to obtain the visa during that fiscal year, are used without exceeding overall numerical limitations.

For example, if 400,000 visas were allocated for family-sponsored immigrants in FY 1997, and during that year only 390,000 visas were issued because 10,000 immigrants were delayed beyond the end of the fiscal year, the remaining 10,000 visas could be issued to the delayed or other eligible aliens during the next fiscal year but would count toward the original year. Under the proposed amendment, the Department of State could charge to FY 1997 all visas allocated in that year even if some visas were issued in FY 1998. As the recommendation affects only aliens already entitled to a visa, annual number limitations would not be exceeded.

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The Commission further recommends that the INA be amended to address better the aging-out problem of certain aliens. "Aging-out" occurs when extensive backlogs prohibit an applicant who was

under twenty-one at the time a petition was filed from receiving a

visa because he or she is now over the age limit for that preference

category. It is an unfortunate side effect of waiting lists, especially as the individual already has an approved petition. This issue,

which arises particularly in the case of the minor children of legal permanent residents, will become even more of a dilemma should admission opportunities for adult children be eliminated, as the Commission recommends. For example, the minor child of a legalized alien may have been granted Family Unity with the understanding that eventually a visa would be available. Under current law, a child who has aged-out would rarely be deported, but is ineligible for permanent residence on an approved child visa. A provision stating that, "a person entitled to status at the time a petition is approved shall continue to be entitled to that status, regardless of his or her age," would allow such applicants to retain their eligibility for immigrant visas.

The Commission further

recommends

that the INA

be amended

to address better the aging-out problem of

certain aliens.

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