I have previously laid out the case that the government has cheated legal immigrants for decades by erroneously counting the spouses and children of immigrants against the quotas for immigration, thereby reducing the total amount of immigration substantially. My argument relied primarily on the text of the law and not the legislative history. But I have recently come across evidence that proves that members of Congress believed that spouses and children wouldn’t count against the cap.

The Immigration Act of 1990 provided the basis for issuing green cards to spouses and children of legal immigrants in section 203 of the Immigration and Nationality Act (INA). Congress divided section 203 into subsections. Subsection (a) provides green cards for certain family-members of U.S. citizens and residents, subsection (b) for employment-based immigrants, and subsection (c) for diversity lottery winners. Each of these categories have a quota. Subsection (d) separately awards green cards to the spouses and minor children of the primary applicants under subsections (a) through (c).

This means that if an employee, for example, qualifies for a green card through employer sponsorship under subsection (b), their spouses and children qualify for green cards under subsection (d). Subsection (d) has no quota, while subsections (a) through (c) do have quotas, so the question is, do the spouses and children count under subsection (d) without a limit or under the other subsections with limits?

While no member of Congress directly addressed this question in 1990, they made comments that we can only interpret as indicating that they believed spouses and children would not count toward the quotas. In the same bill in 1990, Congress created the EB-5 Investor Program in subsection (b) of section 203. Under the law, up to 10,000 immigrants can receive green cards if they invest in a new commercial enterprise that creates at least 10 jobs. Thus, a minimum of 100,000 jobs would be created if all the green cards went to investors. However, if their families count against the green card limit, then fewer than 10,000 investors would receive green cards and fewer than 100,000 jobs would be created.

All members of Congress made the same calculation: that up to 100,000 jobs would be created because the 10,000 green cards would go to investors. On October 26, 1990, Sen. Paul Simon (D-IL) stated, “This one provision will generate over $8 billion annually in new investment in small and independent U.S. businesses and provide up to 100,000 new jobs for Americans.”

Rep. Lamar Smith (R-TX) spelled out the calculation explicitly, stating, “if these 10,000 investor visas are taken advantage of, it will create a minimum of 100,000 jobs in the United States” (emphasis added). Another member interrupted him to ask where the figure came from, and Rep. Smith responded that “10,000 investors may come into the country if they are going to start a business that will employ at least a minimum of 10 employees. That is where the figure comes from of 100,000 guaranteed jobs.” Rep. John Bryant (D-TX) who opposed the provision described the relationship between subsection (b) and subsection (d) in the EB-5 context this way:

We do not have room for all the family unification that was in the bill when it left the House, but we have room for 10,000 persons who can qualify for the United States by buying citizenship here if they have a million bucks to do it. What the bill says, if they will come into the country and invest enough to create 10 jobs, they can stay. This is all they have to do. After that, they can bring in their wife and kids.

In other words, Rep. Bryant also understood the provision to allow 10,000 investors who, if they created 10 jobs, could then additionally bring their spouses and children. This means that the current EB-5 backlog for Chinese investors simply should not exist because it is entirely the result of the government’s inaccurate interpretation of the law, namely, that the spouses and children of investors count against the quota. But members of Congress explicitly envisioned 10,000 investors under the quota of 10,000.

The really important fact in this is that the provision that grants green cards to the spouses and children of EB-5 investors also applies to all other immigrants under section 203: family-sponsored immigrants, employer-sponsored immigrants, or diversity lottery winners. If Congress believed that provision did not count spouses and children of EB-5 investors against its quota, then the same would have to be true for the other categories, which also have long backlogs.  

This evidence comes in addition to a tremendous amount of textual support for this position. In fact, there is absolutely no indication in the text of the law that spouses and children should count against the cap, and every reason to believe that they should not. It is abundantly clear that the government is cheating legal immigrants, forcing them to wait much longer than they should have to. The government should stop this erroneous practice, or someone should sue to stop it.