Immigration News Blog

Tuesday, December 16, 2014

U.S. Family-Based Immigration Policy

Congressional Research Service (CRS)

U.S. Family-Based Immigration Policy
William A. Kandel,  Analyst in Immigration Policy
November 19, 2014
http://fas.org/sgp/crs/homesec/R43145.pdf
[full-text, 41 pages]

Summary
Family reunification is a key principle underlying U.S. immigration policy. It is embodied in the
Immigration and Nationality Act (INA), which specifies numerical limits for five family-based
admission categories, as well as a per-country limit on total family-based admissions. The five
categories include immediate relatives of U.S. citizens and four other family-based categories that
vary according to individual characteristics such as the legal status of the petitioning U.S.-based
relative, and the age, family relationship, and marital status of the prospective immigrant.

Of the 990,553 foreign nationals admitted to the United States in FY2013 as lawful permanent
residents (LPRs), 649,763, or 66%, were admitted on the basis of family ties. Of these familybased
immigrants admitted in FY2013, 68% were admitted as immediate relatives of U.S.
citizens. Many of the 990,553 immigrants were initially admitted on a temporary basis and
became immigrants by converting or “adjusting” their status to a lawful permanent resident. The
proportion of family-based immigrants who adjusted their immigration status while residing in
the United States (54%) exceeded that of family-based immigrants who had their immigration
petitions processed while living abroad (46%), although such percentages varied considerably
among the five family-based admission categories.

Since FY2000, increasing numbers of immediate relatives of U.S. citizens have accounted for all
of the growth in family-based admissions. Between FY2000 and FY2009, immigrants who
accompanied or later followed principal (qualifying) immigrants averaged 12% of all familybased
admissions annually. During that period, Mexico, the Philippines, China, India, and the
Dominican Republic sent the most family-based immigrants to the United States.

Each year, the number of foreign nationals petitioning for LPR status through family-sponsored
preferences exceeds the supply of legal immigrant slots. As a result, a visa queue has accumulated
of foreign nationals who qualify as immigrants under the INA but who must wait for a visa to
immigrate to the United States. As such, the visa queue constitutes not a backlog of petitions to be
processed but, rather, the number of persons approved for visas not yet available due to INAspecified
numerical limits. As of November 1, 2013, the visa queue included 4.2 million persons.

Every month, the Department of State (DOS) produces its Visa Bulletin, which lists “cut-off
dates” for each of the four numerically limited family-based admissions categories. Cut-off dates
indicate when petitions that are currently being processed for a numerically limited visa were
initially approved. For most countries, cut-off dates range between 1.5 years and 12.5 years ago.
For countries that send the most immigrants, the range expands to between 2 and 23 years ago.
Interest in immigration reform has increased scrutiny of family-based immigration and revived
debate over its proportion of total lawful permanent admissions. Past or current proposals for
overhauling family-based admissions have been made by numerous observers, including two
congressionally mandated commissions.

Those who favor expanding the number of family-based admissions point to this sizable queue of
prospective immigrants who have been approved for lawful permanent residence but must wait
years separated from their U.S.-based family members until receiving a numerically limited
immigrant visa. Their proposals generally emphasize expanding the numerical limits of familybased
categories. Others question whether the United States has an obligation to reconstitute
families of immigrants beyond their nuclear families. Corresponding proposals would eliminate
several family-based preference categories, favoring only those for the immediate relatives of
U.S. citizens and lawful permanent residents. Such proposals reiterate recommendations made by
earlier congressionally mandated commissions on immigration reform.
 

 

Permanent Legal Immigration to the United States: Policy Overview

 Congressional Research Service (CRS)

Permanent Legal Immigration to the United States: Policy Overview
William A. Kandel, Analyst in Immigration Policy
October 29, 2014
http://fas.org/sgp/crs/homesec/R42866.pdf
[full-text, 16 pages]

 

The Obama Administration’s Announced, Immigration Initiative: A Primer

Congressional Research Service (CRS)

Legal Sidebar
The Obama Administration’s Announced, Immigration Initiative: A Primer
11/24/2014
https://fas.org/sgp/crs/homesec/immprimer.pdf
[full-text, 3 pages--with extensive links]

On November 20, President Obama announced the commencement of a multi-pronged immigration
initiative that could, among other things, enable a substantial portion of the unlawfully present alien
population to obtain temporary relief from removal and work authorization. The new initiative also involves
other actions, including narrowing the scope of aliens prioritized by federal immigration authorities for
removal; using “parole” authority to allow certain aliens to enter or remain in the United States; and
modifying rules relating to visa eligibility (or processing). This Sidebar provides a brief overview of the
major components of the announced initiative. A CRS Report providing more extensive analysis is in
preparation.

 

Thursday, December 04, 2014

Congressional Research Service (CRS) Executive Discretion as to Immigration: Legal Overview

Congressional Research Service (CRS)

Executive Discretion as to Immigration: Legal Overview
Kate M. Manuel,  Legislative Attorney
Michael John Garcia,  Legislative Attorney
November 10, 2014
http://fas.org/sgp/crs/homesec/R43782.pdf
[full-text, 27 pages]

Summary
President Obama announced in June 2014 that he would seek “to fix as much of our immigration
system as I can on my own” through administrative action. Although the Obama Administration
has not yet announced the specific immigration actions it intends to take, the President has stated
that they will occur before the end of the year. It seems likely that such actions will prompt heated
legal debate concerning the scope of the Executive’s discretionary authority over immigration
matters, including with respect to the enforcement of immigration-related sanctions and the
granting of immigration benefits or privileges. Such debate may be similar to that which followed
the 2012 launch of the executive initiative commonly known as Deferred Action for Childhood
Arrivals (DACA), under which certain unlawfully present aliens who were brought to the United
States as children may be granted “deferred action” (a type of relief from removal) and work
authorization. While some have argued that DACA constitutes an abdication of the Executive’s
duty to enforce the laws and runs afoul of specific requirements found in the Immigration and
Nationality Act (INA), others have argued that the initiative is a lawful exercise of the
discretionary authority conferred on the Executive by the Constitution and federal statute.

Executive discretion over immigration matters is informed (and, in some instances,
circumscribed) by statutory delegations of authority and constitutional considerations. In some
cases, a particular immigration policy or initiative might be premised on multiple sources of
discretionary authority. These sources include the following:

• Express delegations of discretionary authority by statute. In some instances, the
INA grants the Executive broad discretion to provide certain forms of relief or
benefits (e.g., work authorization or temporary protected status) to foreign
nationals. In other instances, the INA permits immigration authorities to waive the
application of requirements which would otherwise render an alien ineligible for
particular immigration benefits. The INA also gives the Executive broad “parole”
authority, under which immigration officials may sometimes permit aliens to
physically enter or remain in the country without such entry or presence
constituting “admission” for immigration purposes. Any exercises of such
statutory authority must be consistent with the terms of the delegation (although
the executive branch might have some discretion in interpreting the statute, as
discussed below).

• Prosecutorial or enforcement discretion deriving from the Executive’s
independent constitutional authority. The Executive is generally recognized as
possessing some degree of independent authority in assessing whether to
prosecute apparent violations of federal law. However, specific statutory mandates
could be seen as limiting the Executive’s discretion to take particular actions (e.g.,
by requiring that certain aliens be detained pending removal proceedings). The
express adoption of a policy that constitutes an abdication of a statutory duty
could also be found to be impermissible, but it might be difficult for a court to
assess the degree of nonenforcement that would entail an “abdication.”

• Discretion in interpreting and applying immigration law. The Supreme Court
has found that some deference may be owed to agency regulations (or
adjudications) which construe statutes that are “silent or ambiguous” as to specific
issues. The executive branch may also be afforded deference in less formal
interpretations of statutes and in interpreting its own regulations. However,
agency interpretations must conform to the “unambiguously expressed intent of
Congress.”

 

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