OFF THE CHAIN…OF IMMIGRATION

Many across the country have been giving a lot of attention in recent weeks to “chain migration”, meaning family-based immigration, or “family reunification”, a staple of United States immigration policy since the 1965 Immigration and Nationality Act (“INA”).  But, is the term “chain migration”[1] merely a pejorative used by critics, or does the term have factual basis?

Under current law, an individual who is a citizen or obtains a legal permanent resident status in the United States may petition the government to allow certain family members to enter the United States with intent to immigrate and thus obtain their legal permanent resident status.[2]  A US citizen may petition for immigrant visas for the following relatives:

·       a spouse,

·       children – including step-children under 21 years of age,

·       married or unmarried children over 21 years of age (and the spouses and children of those children),

·       siblings, and

·       parents (including step-parents whose marriage occurred before petitioner’s 18th birthday).

Legal permanent residents (“LPRs”) may petition for immigrant visas for

·       their spouse,  

·       children – including step-children under 21 years of age, as well as

·       their unmarried children over 21 years of age.[3]

Debate recently has concentrated on the criticisms of family reunification, or “chain migration” because, the argument goes, “a single immigrant can bring in virtually unlimited numbers of distant relatives,”[4] into the United States as legal permanent residents with a path to citizenship, or eligibility for naturalization, in as little as 3-5 years, depending on the familial relationship.  The truth is, while it is legally accurate that family reunification policy in immigration does not limit the number of relatives one individual may ultimately bring into the United States as immigrants (through second and third level petitions by relatives originally brought by the first petitioner), the process is generally a long and costly one.

Specifically, a US citizen, not an LPR, has the right to petition on behalf of parents, a spouse, and unmarried children under 21 years of age for immigrant visas – deemed “immediate relatives”, which visa will be available upon approval of the petition(s).  Such visas are not subject to any annual or country-based quota or preference.[5]  All other relatives listed above for whom either a US citizen or LPR, respectively, may petition for an immigrant visa, must wait in a queue, due to annual or country-specific numeric limitations on available visas.[6]  For a sense of just how long these waiting lines may be, the February 2018 visa bulletin indicates that, under current annual visa limits, and including country quotas, the petitions filed in March of 2011 and approved on behalf of unmarried children of US citizens (first preference) are just now eligible for a visa.  Moreover, the petitions filed in October of 1994 and approved on behalf of siblings of US citizens (the fourth and last preference category) who are nationals of the Philippines are only just now in February 2018 eligible for an immigrant visa to enter the United States.[7]  On the other hand, it is true that US Citizen “A” may simultaneously petition for a minimum total (and unlimited maximum total) of 9 alien relatives: spouse “B”, at least one child “C”, that child “C”’s spouse “D” and at least one of his children “E”, “A”’s two parents “F” and “G”, (and step-parents “H” and “I”, if eligible), and at least one sibling “J”.  All of these nine may eventually petition, upon obtaining at least LPR status, and even more upon naturalization, for their own relatives, including relatives completely unrelated to the original US citizen petitioner “A”, such as spouse “B”’s two parents and sibling(s), etc., a virtually unlimited number of immigrants over an extended period of time.

Of course, each immigrant petition and visa is vetted through the Department of Homeland Security, and it stands to reason that family-based immigration may be a secure method, among others, of immigration over time, given that the immigrants ostensibly are coming to the United States to live and establish their families and engage in American society and economy, with the opportunity to become citizens.  While this is one argument, alternatively, there is a strong counter-argument that family reunification may be one of the least secure methods of immigration.  Family-based petitions, particularly US citizen petitions for alien spouses and children, provide waiver opportunities for aliens who are otherwise inadmissible under the law for unlawful presence, criminal history, membership in a totalitarian party, misrepresentation in order to obtain immigration benefits, smuggling of persons, and health-related grounds.[8]  For nearly all other immigrant visa types, such waivers are not available.

Regardless of the outcome of the public debate or the policy battle in Congress over family reunification policy reform, Toikka Law Group is equipped and experienced in preparing family-based immigrant petitions, as well as fighting for applicable inadmissibility waivers and defending family members before the Immigration Court (Executive Office for Immigration Review – “EOIR”).  We look forward to representing you and assisting you and your family in pursuing your American Dream.

© 2018 all rights reserved, Rachel L.T. Rodriguez

 

[1] The term has been in use generally since the 1960s regarding immigration based on familial/social relationships.  See also John S. MacDonald and Leatrice D. MacDonald (1964). "Chain Migration Ethnic Neighborhood Formation and Social Networks". The Milbank Memorial Fund quarterly. 42: 82–97.  “Chain migration can be defined as a ‘movement in which prospective migrants learn of opportunities, are provided with transportation, and have initial accommodation and employment arranged by means of primary social relationships with previous migrants.’”

[2] See generally INA, as amended, section 201(a)(1) and (b)(2) and section 203 (8 USC §§ 1151, 1153).

[3] Id. Section 203.

[4] President Donald Trump’s statement regarding family reunification immigration during his January 2018 State of the Union address.

[5] INA section 201(b)(2); note that because far more immigrant petitions are filed on behalf of Mexican, Chinese, Filipino, and Indian aliens, these countries are subject to country-specific quotas within preference-based visa limitations.  See generally INA section 202.

[6] INA section 203(a); section 202(a).

[7] See https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-february-2018.html for all details regarding current visa processing, with additional details regarding preference categories.

[8] See INA section 212(a) and (g), (h), (i) (8 USC § 1182).