For decades, the government has cut the number of immigrants far below what Congress authorized. Since 1990, every administration has misinterpreted the law, counting the spouses and children of legal immigrants against the limits on immigration when the statute lacks the requirement. This has cut the available slots for high-skilled workers in half, creating endless delays as they wait to obtain permanent residency in the United States.
Immigrants qualify for visas to come to the United States by meeting various requirements (college degree, family connections, etc.) and by having an employer or U.S. resident to sponsor them. Those who meet the requirements—the primary applicants—can also bring their spouses and minor children—the derivative applicants. The law limits immigration to no more than 226,000 visas for family members of U.S. citizens, 140,000 for employees of U.S. business, and 55,000 for diversity immigrants from areas that send few immigrants here. The question is: should only primary applicants count against those caps or should their families be counted against them as well?
In 1990, the Bush administration decided that the spouses and children should count against the cap. This has had a particularly acute effect in the employer-sponsored categories, where a majority of the 140,000 visas are used by spouses and children instead of workers. In 2014, for example, 56 percent of immigrants admitted under the “employer-sponsored” immigration categories were actually family members of the workers. Whenever a spouse or child uses one of the 140,000 visas, they take spots away from workers who applied after them, delaying them from getting their visas.
Counting spouses and children ignores the plain reading of the law
The problem with what the Bush administration did is that the law contains no requirement to count families against the visa limits. Here, for example, is the relevant part of the statute (subsection (b) of 8 U.S.C. 1153) that designates 40,000 visas for the highest skilled workers:
(1) Priority Workers.—Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level [40,000]… to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):
(A) Aliens with extraordinary ability…
(B) Outstanding professors and researchers…
(C) Certain multinational executives and managers…
The plain reading of the statute is that those 40,000 visas are meant for “aliens with extraordinary ability,” “outstanding professors and researchers,” and “multinational executives and managers”—not for their spouses and children. Congress provided visas for spouses and children in a separate subsection (subsection (d) of 8 U.S.C. 1153). Here that is:
(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 members], (b) [for workers] or (c) [for diversity immigrants], 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.
What this provision says is that because spouses and children are not entitled to status as workers, they are entitled to status under this provision as spouses and children of workers. And here’s the critical part: this provision does not apply the worldwide limit onimmigration to these workers. We know that it is not saying that spouses and children should receive status as if they were workers under the subsection that has limits because, although it applies the “order of consideration provided in the respective subsection” to the spouse and children, it doesn’t apply the limits on visas provided in that subsection.
Moreover, it’s not clear how, if families were subject to the limitation and treated as workers, they could even be guaranteed “the same order of consideration.” If a worker in line received their green card as the 140,000th person in line, then their family could not receive the exact same order of consideration. They would have to wait until next year. This actually does happen under the current system, which flies in the face of the statute’s clear language.
Lastly, in addition to the total number of visas for the world, Congress also created limits for countries. No more than 7 percent of the visas can be taken by immigrants from any particular country. Spouses and children are explicitly included under the per-country limits, but this does not mean that they are subject to the worldwide limits. We know this because the reverse is true. The statute (8 U.S.C. 202) never applies the per-country limits to diversity visa beneficiaries, meaning that it would be incorrect to conflate the two types of limits.
Another sign that Congress saw the two types of limits differently is that Congress was afraid that the per-country limits, but not the worldwide limits, might separate parents from their children. It created special rules to try to prevent separation from happening under the per-country limit, such that children can borrow the numbers of a different country than the one in which they were born to avoid hitting the limit. (A child born in India to an Indian mother and a Swedish father, for example, could be counted against the Swedish per-country limit instead of the backlogged Indian limit.) Congress could have created a similar scheme—borrowing from future years—to prevent separation due to the worldwide limits, but it knew it didn’t need to: families were guaranteed visas at the same time.
Counting spouses and children was not what Congress intended
The language about spouses and children being “entitled to the same status and same order of consideration” had been in immigration law since 1965, and they were counted against the cap. But in the Immigration Act of 1965, the language was included under the subsection that limited the number of visas:
(a) Aliens who are subject to the numerical limitations specified in section 201(a) shall be allotted visas… as follows:
(1) Visas shall be first made available, in a number not to exceed [10,000]… to qualified immigrants who are unmarried sons or daughters of citizens of the United States…
It then listed 7 more categories of immigrants in the same way before stating:
(9) A spouse or child... shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa or conditional entry under paragraphs (1) through (8) be entitled to the same status and the same order of consideration... if accompanying, or following to join, his spouse or parent.
Thus, a spouse or child are allotted visas as "aliens who are subject to the numerical limitations." In 1990, Congress removed paragraph (9) from the subsection applying the worldwide limits and made it its own subsection, removing it from the cap on visas.
But 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. It did not do so for the other categories of visas—employer, family, or diversity. Again, this strongly implies that Congress wanted spouses and children not to be counted against the caps.
The original House version of the 1990 act made three changes dealing with spouses and children of immigrants. In addition to taking the “entitled to the same status” language out of the numerically limited subsection, it explicitly exempted existing spouses and children of employer-sponsored immigrants initially coming to the United States, while allowing all legal permanent residents (LPRs) already in the country to bring new spouses and children to the United States without any limits.
In combining the House and Senate bills, the conference committee—made up of key members from both the chambers—kept the "entitled to the same status" language, while dropping the language on explicitly exempting families of employer-sponsored immigrants and the broader exemption for new spouses and children. It makes sense to remove the explicit employer-sponsored exemption if the first change—moving the “entitled to the same status” out of the numerical limitation subsection—had already exempted them along with diversity and family-sponsored immigrants. It would have been duplicative, and Congress wanted to treat them all equally.
Removing the broader exemption for all LPRs already in the country is consistent with the view that Congress wanted to keep existing families together—whether they were diversity-, employer-, or family-based immigrants—when they initially entered, but not allow immigrants already in the country to bring new families without a limit.
Statements from the law’s drafters support not counting spouses and children
Former-Congressman Bruce Morrison, the author of the House bill, has argued for this change, but the most telling evidence that Congress intended to exempt spouses and children who initially enter with immigrants comes from opponents of the broader provision exempting spouses and children of immigrants already in the country. When Rep. Lamar Smith (R-TX), ranking member on the House immigration subcommittee, proposed an amendment to strip the broader provision, he made this distinction:
The change… goes beyond the unification of existing families. It rewards less compelling cases of family-connected immigration. That is, an alien who starts a family outside the United States after having emigrated to the United States. In this instance, an alien enters without immediate family, then marries someone from the home country, and petitions for their entry before the principal alien becomes a citizen. I do not find this instance compelling enough to create a whole new immigration entitlement.
Sen. Alan Simpson (R-WY), ranking member on the Senate immigration subcommittee, made the same point in outlining his objection to the House bill. 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,” where the House bill “creates an entitlement to immediate immigrant visas for aliens who go abroad and start new families after those aliens have been granted permanent residence in the United States.”
So the best interpretation of the conference committee changes is that those who advocated for it—led by Sen. Simpson and Rep. Smith—were okay with allowing the spouses and children of diversity-, family-, and employer-based immigrants to receive unfettered access to the United States when they initially entered, but opposed a provision allowing for immigrants who later married or had children. Both Smith and Simpson said this arrangement was to encourage immigrants who are already here to apply for citizenship, while not separating current families coming here for the first time.
The Bush administration never issued regulations interpreting the statute. The State Department just made rules that quoted the “entitled to the same status” language. When the law came into effect in FY 1992, the administration continued to issue visas the same way as it had before. During the debate over the bills, it issued a statement supporting only “a modest increase in the number of legal immigrants” and favoring the less expansive Senate bill. We know it also opposed the broader exemption for immigrants already in the country, so it’s possible that it decided to adopt a restrictive view for those initially coming as well.
These facts cannot help but lead to the conclusion that four administrations have cut legal immigration to half the level that Congress authorized and that high skilled workers have been cheated for decades. President Obama has four months to correct this mistake. Immigrants shouldn’t die waiting for visas that they already have every legal right to.