We are on the brink of a potentially historic moment in the interpretation of our archaic immigration laws. President Obama has the rare opportunity to score a trifecta. He can take executive action that would receive full support from business groups, religious groups, and minority coalitions.
The president has stated that he will announce before year’s end administrative interpretations that do not require changes in the immigration laws as passed by Congress. Perhaps the most important change he can make is to alter the manner in which the worldwide visa quota is counted.
Although, this may appear to be a very complicated “fix,” it is in fact a very straightforward way of solving many of the unintended consequences of our outdated immigration laws. Currently, one visa is counted against the worldwide immigration numerical quota for every individual immigrating to the United States, even though the statutory language clearly contemplates one deduction from the worldwide quota per family unit, not per individual.
Here’s how it works: The Immigration & Nationality Act provides that a set number of individuals from defined classifications, such as siblings, skilled workers and investors, can immigrate to the United States annually and that immediate family can immigrate with the principal.
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Yet, despite the statutory language, the congressionally authorized number of immigrants in each category has been reduced by assigning a separate visa number under the quota for each accompanying family member. For example, although Congress clearly prescribed 10,000 immigrant visas for foreign investors immigrating to the United States, only 2,500-3,000 investors actually immigrate annually, depending on how many investors have a spouse and/or children.
No one could possibly believe that this is what Congress intended when it approved existing legislation. Nor did it intend to make family members wait for up to half a century to be able to unite with the family member who acquired the visa.
Imagine a scenario where this country rejects foreign nationals deemed to be in our national interest or of extraordinary ability because the system has exceeded the worldwide quota for these individuals; and imagine a lawful permanent resident spouse who cannot live with her husband for many years because of a shortage of immigrant visas. These absurd results have become our reality.
The United States is losing exceptionally talented foreign nationals because there is no longer any pathway for them to immigrate to this country. Many in America question why this country has so many illegal foreign nationals. The answer is really very simple. There is often no way for foreign nationals to legally get here and stay here. Employers continue to need the skills of foreign nationals. Our country should never be in the position of having to shut the door on so many extraordinarily talented individuals, but we do — every day!
This country will never be able to conquer the problem of illegal immigration without a sensible path for foreign nationals to become legal. Our current laws lack this sensible path, leaving many foreign nationals, even those whose residence is deemed to benefit our national interest, without any pathway to immigrate. The recent bipartisan immigration bill passed by the Senate recognized the problem with the manner in which worldwide visa numbers were being allocated and provided that immediate family members immigrating with the principal would not need a separate visa number.
Rarely does an opportunity come along to solve an intractable problem in a way that has strong support from so many diverse groups in the immigration debate. In fact, several former general counsels of the U.S. Citizenship and Immigration Service and legacy INS have supported the more generous interpretation. Eliminating family members of qualified immigrants from the congressional quota is an opportunity that President Obama should not overlook.
Tammy Fox-Isicoff is past president of the South Florida American Immigration Lawyer’s Association.