Blog posts tagged in family-based immigration
After the December 11 attack in New York City that was perpetrated by a Bangladeshi immigrant, the president and current administration have gone on the offensive, arguing loudly about the evils of what is being called “chain migration.” They allege that chain migration, also called ‘extended chain migration,’ is a lax policy that permits too many immigrants into the U.S. without proper vetting.
While numerous experts have debunked such claims as manifestly paranoid, it is important to understand the legal arguments surrounding this issue, especially since the authority of the Oval Office may be turned arbitrarily on this aspect of U.S. immigration policy if nothing changes.
A Long and Complex Path
In June 2016, the Supreme Court, still with only eight justices after the passing of Justice Antonin Scalia, issued a per curiam opinion affirming the ruling in U.S. v. Texas, which contested President Obama’s ambitious immigration plans. A per curiam opinion is an opinion issued in the name of the court, rather than any individual justice, and it effectively halts any expansion of Deferred Action for Child Arrivals (DACA) for the foreseeable future. Naturally, many are wondering what their options are after this ruling.
The Basis for Challenge
President Obama’s proposed program, referred to as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) or DACA+, would have conferred deferred action status on approximately five million undocumented immigrants if they met certain requirements, such as maintaining good moral character and having significant ties to the United States. Deferred action is defined as a choice to hold off on removing an individual, and it is essentially an accepted form of prosecutorial discretion.
If you or someone you love winds up in immigration removal proceedings, there are only a few select ways where it might be possible to avoid that eventuality. One of those is called cancellation of removal. However, unless you are a lawful permanent resident (LPR, or a holder of a ‘green card’), cancellation can be extremely difficult to win. You must be able to prove that your removal would pose an ‘exceptional and extremely unusual hardship,’ which is an extremely high standard to meet.
How Will Your Removal Affect U.S. Citizen Family?
To be blunt, United States Citizenship & Immigration Services (USCIS) cares very little about the inconvenience to an undocumented or non-LPR immigrant. What is more relevant is the potential difficulty to any U.S. citizen family members you may have. For LPRs, the standard is to show that your removal would cause ‘extreme’ hardship to a U.S. citizen spouse or children. For non-LPRs, the standard is raised to “exceptional and extremely unusual.”
The word ‘quota’ has an ugly past, especially in the context of visas. In years past it was used as a bludgeon with which to deny safety to people in need. Today, there are more exceptions and protections for those truly in need, while visa quotas are reserved for those not in immediate danger. Still, there is a lot of misinformation about how the yearly caps work. If you are planning to apply for certain categories of visas, you must understand how the quota works lest you inadvertently disqualify yourself.
There are two classifications for visas available to those attempting to immigrate via a family-based petition. The first is for immediate relatives of U.S. citizens such as parents, children and spouses. There is no quota limit in force in this category. The second is for what are called preference categories—non-immediate relatives or people who are the wrong age to apply themselves (such as the child of a non-immigrant visa holder who is in the process of adjusting status).
For the second classification, the Immigration and Nationality Act (INA) allows 226,000 family-based visas to be granted per year. However, it is important to note that this is a minimum, not a maximum. The statutory wording refers to “at least” that amount being issued. The number actually issued each year varies. It is arrived at by subtracting the number of immediate relative visas and paroled immigrants from 480,000, and adding the number of unused employment preference visas.
Congress attempts to seek balance in nationality and also relationship to ensure that not too many of one category are permitted entry in any one year. Per-country ceilings are established under the INA that mandate that any given country may not exceed 7 percent of the number of permanent immigrants in a given year. This is not to restrict solely for restriction’s sake, but to ensure that no country dominates the number of visas granted each year. Such a thing would become a fairness issue.
There are four categories of preference for family-based petitions. They are:
- F-1: Unmarried children of U.S. citizens (and their dependents);
- F-2: Spouses and unmarried children of green card holders;