August 17, 2016 12:06PM

Criticism of Not Counting Dependents of Legal Immigrants Is Unfounded

In a post last week, I described how every administration since 1990 has misinterpreted immigration law, admitting far fewer legal immigrants than Congress authorized. Legal immigrants qualify for a visa either by having U.S. sponsors—employers or family members—or by winning a visa in the diversity visa lottery. Except for spouses and minor children of U.S. citizens, the law limits the number of immigrants with quotas, but it has no such cap for their spouses and children that come with them. Nevertheless the government still counts them against the limits.

Naturally, the folks at the Center for Immigration Studies (CIS)—the leading opponents of legal immigration—disagree. In a post responding to former congressman Bruce Morrison’s support of this view, CIS’s John Miano asserts that the coauthor of the relevant law (the Immigration Act of 1990) doesn’t understand the law that he helped write.

But it is Mr. Miano who is confused. He argues that because spouses and children (dependents) of immigrants are not included in the categories of immigrants who are admitted without being subject to annual quotas, “the plain reading of the section unambiguously states that some quota applies to dependent immigrants.” First of all, the statute doesn’t discuss dependents at all, so it doesn’t unambiguously say anything about them. But as I noted in my original post, the most obvious reading is that the quotas only apply to those who the law actually says they apply to. Here, for instance, is the quota for the first family-based category:

Aliens subject to the worldwide level specified in section 1151(c) of this title for family-sponsored immigrants shall be allotted visas as follows:
(1) Unmarried sons and daughters of citizens.—Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400.

The “plain reading” here is that the limitation applies only to “unmarried sons and daughters of citizens.” Mr. Miano has to read dependents into these provisions.

More to the point, Mr. Miano is wrong to conclude that spouses and children of immigrants should have naturally been included in the section for immigrants not subject to the quotas because, even if they are not counted against the immigration limits, they are still be subject to the limits in a very important way: through their relationships to the primary applicants. Because the primary applicants are counted, spouses and children who are not cannot simply come in automatically and immediately the way that spouses and minor children of U.S. citizens can. They have to wait in line with their spouse or parent. They are subject to the caps without being counted against them.

Under the correct interpretation, once a visa number is available for the primary applicant, the dependents should be able to enter at the same time without being counted. This is what Sen. Alan Simpson, one of the other co-authors of the law, said that he wanted at the time that the law was being debated. He envisioned a system where “as long as the spouse and children were in existence at the time the alien was issued the visa, they may enter when they wish, without restriction” (emphasis added). This meant that they would still have to wait in line, but they wouldn’t be restricted after they waited.

This interpretation—that dependents are only subject to the limitations through the primary applicant—is reinforced in the subsection that grants them visas:

(d) Treatment of family members.—A spouse or child…shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a) [for family], (b) [for workers], or (c) [for diversity], be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

Mr. Miano argues that the phrase “same status” means that visas issued to dependents must have the same quota as the spouse or parent. But saying that someone has the same status as someone else tells us nothing about whether their limits on the number of people who can receive that status are the same. For example, minor children of U.S. citizens receive the exact same status—legal permanent residency—as adult children, but adult children have a quota whereas minor children do not.

What’s important is under what provision—one with quotas or one without—dependents are granted the “same status.” Reread the subsection and you will see that the order of consideration is “provided in the subsection” for the primary applicant, meaning that they have to wait in line together, but the status is not “provided in that subsection.” Note how the commas set the order of consideration phrase apart from the one granting status. The status—legal permanent residency—is the same, but its origin is different. It is this subsection that provides status to the spouses and children, while the subsection for primary applicants provides the “order of consideration.”

This is so significant because this subsection has no limits on how many people can receive status under it, while the other subsection—for the primary applicants—does have limits. Importantly, the law would be contradictory if this interpretation were not taken. If spouses and children were not exempt from the numerical limits, families could not be guaranteed the exact same “order.” They could be cut off from the primary applicant (as sometimes happens under the current system).

Lastly, Mr. Miano confuses the two types of visa limits—the worldwide limits and the per-country limits. Immigrants from no individual country can have more than 7 percent of the total number of visas issued in any year, and the law explicitly applies this limit to spouses and children of family- or employer-based immigrants. But immigrants can be counted against one limit, and not the other. Congress, for example, didn’t apply diversity visa applicants to the per-country limit but did to the worldwide limit.

Moreover, as I pointed out, Congress made efforts to prevent separation of dependents from the primary applicants due to the per-country limits. It made no similar effort for the family-, employer-, or diversity-based quotas because it knew that it didn’t need to: they were already guaranteed visas at the same time.

Perhaps Mr. Miano won’t believe my analysis. But fortunately, we know for a certainty that Congress did agree with this view. As I wrote before:

Here is the smoking gun of congressional intent: Congress set aside 12,000 visas for workers from Hong Kong, 1,000 for displaced Tibetans, and 40,000 for transitional diversity beneficiaries. Each time, it stated that spouses and children were “entitled to the same status and same order of consideration” without including them under the special new visa caps. But in early FY 1992, just after the 1990 act was implemented, Congress amended the law to apply those limits to their families, specifying that the visa numbers were for any alien admitted as, for example, a displaced Tibetan “or as the spouse or child of such an alien.” Congress understood that the plain reading of that language would have exempted the spouses and children from being counted, and so it amended the law specifically to include them.

This proves that Congress believed that the language would have exempted the spouses and children. It changed the law to prevent this from happening for those categories, but not for family-, employer-, or diversity-based immigrants, proving its intent to keep those open-ended. The president should start implementing this intent now or he could face a lawsuit later.