Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen
by gendelman, on Immigration
By Gary Endelman and Cyrus Mehta
“The only valid test of leadership is the ability to lead, and lead vigorously.”
As part of his emerging re-election strategy, President Obama has issued a series of executive orders designed to take action on serious national problems without support from the Congress. In each case, the President has justified his actions with the rallying cry of “We Can’t Wait!” The press has taken note of this renewed executive vigor and the President’s poll numbers have begun to rise a bit as Americans are reminded once again of how powerful a bully pulpit the Presidency can be when its resources are fully engaged. One wonders if the same initiative could not produce equally dramatic results in the immigration arena. What if, for example, the President issued an executive decree that henceforth derivative family members would no longer be counted against the immigrant visa quotas, both family and employment-based? That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore equilibrium to our imbalanced immigration system.
At this point, if one files a labor certification in 2011 under the employment-based third preference for India, it will take 70 years before the green card materializes! The adult son or daughter who was born in Mexico of a US citizen does much better relatively under the family-based first preference, but the wait is still close to 20 years! Such a hopeless wait is simply untenable for an employer who has unsuccessfully tested the US labor market for much needed skills in short supply. It is similarly inhumane for a parent to yearn for so long to reunite with her son. Mind you, we are talking here about legal immigration, and those who rail against unauthorized immigrants accuse them for not getting into the line. But when the avenues for legal immigration are few and the lines endless, the system has broken and we are dealing with a situation, in the face of Congressional paralysis, that is going from bad to abysmal. We acknowledge that the House recently passed H.R. 3012, the Fairness for High Skilled Immigrants Act on September 22, 2011 by a landslide vote of 389-15, which if passed, will eliminate the employment-based per country limits and increase the family-based per country cap from 7% to 15%. , H.R 3012,on the other hand, will not increase the overall number of immigrant visas. While it may reduce the waiting times for China and India in the employment-based preferences, nationals of all other countries may experience backlogs, especially in the employment-based second preference. Thus, the problems of backlogs will still remain. While we acknowledge that only Congress can create more avenues for legal immigration, is there a legal basis for an interpretation that would dramatically reduce, or even eliminate, such a long wait under the EB and FB preferences? We think there is.
We know of no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. Let us examine what INA § 203(d) says:
A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, 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.
There is nothing here that explicitly authorizes or mandates the counting of family members under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal alien, nothing requires that family members also be given their own numbers. Suppose, for example, that there is only one visa number left in a fiscal year for the EB-2 category and that the last principal beneficiary who gets this number has a spouse and 6 children. What happens to them? Ought they not be accorded “the same status and the same order of consideration?” Should only the principal become an LPR while everyone else waits till next year? What if visa retrogression sets in and the family has to wait, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA § 203(d) to argue that family members should not be counted against the cap? We do not contend that they should be completely exempted from being counted. As stated in INA 203 § (d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.”
There is no regulation in 8 CFR that truly interprets INA § 203(d). Even the Department of State’s regulation at 22 CFR Section 42.32 fails to illuminate the scope or purpose of INA 203(d). It does nothing more than mindlessly parrot INA § 203(d). The authors recall the Supreme Court’s decision in Gonzales v Oregon, 546 US 243, 257 (2006) reminding us that a parroting regulation does not deserve deference:
Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.
It is certainly true that family members are not exempted from being counted under INA § 201(b) as are immediate relatives of US citizens, special immigrants, or those fortunate enough to merit cancellation of their removal. Yet, we note that the title in INA § 201(b) refers to “Aliens Not Subject to Direct Numerical Limitations.” What does this curious phrase mean? Each of the listed exemptions in INA § 201(b) are outside the normal preference categories. That is why they are not subject to direct counting. By contrast, the INA § 203(d) derivatives are wholly within the preference system, bound fast by its stubborn limitations. They are not independent of all numerical constraints, only from direct ones. It is the principal alien through whom they derive their claim who is and has been counted. When viewed from this perspective, there is nothing inconsistent between saying in INA § 203(d) that derivatives should not be independently assessed against the EB or FB cap despite their omission from INA § 201(b) that lists only non-preference category exemptions.
We do not claim that derivative beneficiaries are exempt from numerical limits. As noted above, they are indeed subject in the sense that the principal alien is subject by virtue of being subsumed within the numerical limit that applies to this principal alien. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is, then, a profound difference between not being counted at all, for which we do not contend, and being counted as an integral family unit rather than as individuals. For this reason, INA § 201(b) simply does not apply. We seek through the simple mechanism of an Executive Order not an exemption from numerical limits but a different way of counting them.
Other objections present themselves. Skeptics will remind us that, when Congress wished to carve out family members from a quota, even apart from INA § 201(b), it knew how to do so. Take a look at how family members of special immigrant Iraqi translators were treated. In §1244(c) of the Defense Authorization Act of 2008, Pub. L. No. 110-181, Congress explicitly stated that only principal aliens would be charged against the 5,000 visas allocated to Iraqi translators. Is this a problem? Not really since §1244 of the Defense Authorization Act of 2008 was clearly emergency legislation designed to extract Iraqi translators from a dangerous situation. The United States properly felt a moral obligation to extract these people who had worked with us and could not allow inadequate visa allotments to jeopardize lives. So §1244 is clearly sui generis. By fortunate contrast, the INA is not emergency legislation.
Another argument can be lodged in opposition to our proposal that President Obama need not wait for Congress to act. We are properly reminded that INA §§ 201(a) (1) and 201 (a) (2) mandate that “family sponsored” and “employment based immigrants” are subject to worldwide limits. Does this not cover spouses and children? After all, the definition of “immigrant” in INA § 101(a) (15) includes “every alien except an alien who is within one of the following classes of nonimmigrant aliens.” Then the rest of the subsection goes on to categorize the various nonimmigrant visa classifications from A to V. True enough but all is not lost. While the term “immigrant” under INA §101(a)(15) (a) (15) includes spouse and children, they were included because, in concert with their principal alien family member, they intended to stay permanently in this their adopted home. No one ever contended they were or are non-immigrants. However, this does not mean that such family derivatives are either “employment based” or “family sponsored” immigrants. No petitioner has filed either an I-140 or I-130 on their behalf. Their claim to immigrant status is wholly a creature of statute, deriving entirely from INA § 203(d) which does not make them independently subject to any quota.
INA § 203(d) must be understood to operate in harmony with other provisions of the INA. Surely, if Congress had meant to deduct derivative beneficiaries, it would have plainly said so somewhere in the INA. The 1952 Act has been amended numerous times for many different reasons over the years. At no point did Congress do so. Under the theory of expressio unius est exclusio alterius, it is entirely reasonable to conclude that Congress had not authorized such deduction. Surely, if this was not the case, Congress would have made its intent part of the INA. Interpreting a statute through its plain meaning trumps all other cannons of interpretation, and the following quotes from notable Supreme Court decisions are worth noting:
[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.
Rubin v. United States, 449 U. S. 424, 430 (1981).
Prior to IMMACT 90, which took effect on October 1, 1991, the start of FY 1992, family members were counted against the cap but there was no explicit provision as in current INA § 203(d) granting them the same visa and “green card” status as the principal alien family member. What was the purpose then of inserting INA § 203(d)? §101(b)(3) of the House version of IMMACT 90 amended INA § 201(b) to provide that an alien “who is provided immigrant status under INA § 203(d) as the spouse or child of an immigrant under INA 203(b)” would be among the other classes not subject to numerical limitation. Take a look at the Conference Report that accompanied S. 358, IMMACT 90. In the Joint Explanatory Statement of the Committee of Conference at page 121 under the title “Employment Based Immigration” we read the following:
The House amendment allocated 65,000 employment-based visas during the Fiscal Years 1992-96 and 75,000 thereafter not including numerically exempt derivative spouses and children… (emphasis added)
Curiously, there is no explicit mention or discussion of what became of INA § 203(d) in the Conference Report. We next look at House Report No. 101-723 that accompanied House passage of HR 4300 on October 3, 1990. S. 358 passed in lieu of HR 4300 after its language was amended to contain much of the text of the House bill. Under the proposed HR 4300, the 54, 000 visas that were then allocated under the employment-based preference would have been capped at 75,000 principals. Those family members accompanying or following to join were not included in this cap. Candor compels us to admit that the House exemption for derivatives was removed in Conference. Ultimately, Congress enacted INA 201(d) which set a numerical limit of 140,000 for EB immigrants but counting family under that expanded cap. If the House had its way, IMMACT 90 would have had a lower numerical limit of 75,000 EB numbers, but, since family members were not counted, the actual number of EB immigrants would have been higher than 140,000. However, it must be remembered that the House’s intent to exclude family members only applied to the EB not Family quota.
Despite the legislative history cutting against us, it still remains a mystery as to why INA §203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT 90 quotas. Was INA § 203(d) introduced to ensure that family members would be counted especially after the House sought to exempt them? Or was it the converse? Could not it be equally the case that INA § 203(d) remains as a vestigial reminder of the House’s intent that was never taken out? The purpose of INA 203(d) then would be to make sure that, even though derivatives would not be counted against an enlarged EB cap, they would not be left out in the cold but still get the same “green card” benefits as the principal?
Our proposal does not call for the President to defy the express or implied will of Congress nor do we suggest for a moment that he should act without due regard for Congressional authorization. The INA remains resolutely undecided on whether family members should be subject to an independent assessment. At a minimum, in such an uncertain situation, the President finds himself in what Justice Jackson famously called a “twilight zone” such that Congressional inertia not merely enables, but actually invites, the exercise of independent presidential authority. In his famous concurring opinion, Justice Jackson reminds us, and should remind our readers as well, that, however meritorious, separation of powers it was not without limit:
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.
President Obama’s demonstrated willingness to bypass the current gridlock in Congress as a way to enact economic policy should be a model for the same executive initiative as a tool for immigration reform. The creation of law by federal agencies has become the norm rather than the exception in our system of governance , if for no other reason than that the sheer multiplicity of issues, as well as their dense complexity, defy traditional compromise or consensus which are the very hallmarks of Congressional deliberation. Despite the assertion in Article I of the Constitution that “ All legislative Powers herein granted shall be vested in a Congress of the United States,” it is far from novel to acknowledge as we must that independent federal regulatory agencies also exercise legislative powers. As Justice White noted in his dissent in INS v Chadha, 462 U.S. 919, 947 (1983) (White,J., dissenting) after reviewing prior cases upholding broad delegations of legislative power:
These cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without passage of new legislation. For some time, the sheer amount of law- the substantive rules that regulate private conduct and direct the operation of government- made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question that agency rulemaking is lawmaking in any functional or realistic sense of the term.
Immigration has historically been linked to foreign policy. Indeed, a core reason for the plenary federal power over immigration is precisely because it implicates real and genuine foreign policy concerns. This is another reason why the Executive enjoys wide, though not unchecked, discretion to effect changes in immigration procedures through sua sponte regulation. Indeed, it is perhaps only a modest exaggeration to maintain that the INA could not be administered in any other way: “The power of an administrative agency to administer a congressionally created…program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Not only is it appropriate for the President to direct the formulation of immigration policy on technical issues of surpassing importance, this is the way it must be; this is what the Constitution expects. In perhaps the most famous judicial exposition of the need for pragmatic presidential initiative, we end our advocacy in confident reliance upon the still cogent observations of Chief Justice John Marshall in McCulloch v. Maryland.
To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
The situation will not improve on its own. If anything, it is going to get worse. Why? The longer it takes to get a green card, the older adjustment of status or immigrant visa applicants will be, and the result will inevitably be an increase in the number of spouses and children who will take an increasing share of the green card pie. Rather than easing, the problem will worsen as more immigrant visa deductions per adjustment of status case simply clog the arteries of the priority date system to the point where it can no longer function. The haunting lyrics of Paul Simon would then become the anthem of the priority date system as the holy grail of a current priority date becomes ever more elusive:
Slip sliding away
Slip sliding away
You know the nearer your destination
The more you’re slip sliding away,
Not only would this serve as a brake against lawful permanent admissions from visa backlogged countries but, additionally, the numbers of naturalized citizens from these same sending nations will also be artificially depressed. Not being able to become lawful permanent residents in the numbers that would otherwise be theirs if dependents were not deducted translates into a loss of naturalization eligibility on a massive scale. This silent though no less insidious process will shape the political character of the American electorate in ways that we can now only dimly anticipate.
While modest recent EB-2 advances for China and India are certainly welcome, they result largely from EB-1 overflow and do not disguise the continued structural drag on the natural progression of priority dates resulting from the continued independent counting of derivatives. The degree to which this represents a modern version of the infamous national origins quota remains very much of an open, though enormously troubling, question.
All of this could be profoundly affected should the Senate follow the House of Representatives and, over a three-year period, eliminate per country caps on employment-based immigrant visas and raise the per country limit on family-based cases from 7 to 15%. Is HR 3012 the answer to systemic visa regression? Ironically, this is the brainchild of Tea Party favorite Representative Jason Chaffetz (R-Utah), a freshman who won his House seat by knocking off six-term Congressman Chris Cannon in a Republican primary that revolved around Cannon’s attempts to solve the problem of undocumented immigration. Senator Mike Lee from Utah, who unseated long-time Utah Senator Robert Bennett in 2010 for being too moderate, introduced an identical bill in the Senate. The “Fairness for High-Skilled Immigrants Act,” S. 1857, was introduced on November 10, 2011. It has been referred to the Senate Committee on the Judiciary. While there seems widespread support for this bill in the Senate, Iowa Republican Charles Grassley, known principally for his crusade against the H-1B, has placed a hold on the bill so it is uncertain whether or when the Senate will act.
It is anticipated that removal of per country caps on employment-based migration would drastically reduce, perhaps eliminate, the green card backlogs for EB-2 advanced degree holders from China and India while significantly reducing EB-3 waiting times. Since HR 3012 would not be totally effective until October 1, 2014, most of the anticipated benefits should be felt with regard to future submissions, not pending cases. What is far less certain is the impact on the rest of the world. This is because HR 3012 does not create any new immigrant visas so that reductions in time for India and China may come at the expense of greater delays for natives of all other countries. . There are more optimistic assessments, however, from the National Foundation for Immigration Policy. Any estimates are highly speculative since the Visa Control Office within the Department of State has far more reliable statistics concerning I-140 consular processing than the I-140 caseload at the Nebraska or Texas USCIS Service Centers where the vast majority of demand is felt. Ironically, if waiting for Godot becomes a global concern rather than just a Chinese or Indian problem, the impetus for comprehensive immigration reform may acquire powerful new momentum.
A cursory review of recent history does provide possible reason for cautious optimism. Prior to January 1, 2005, the EB numbers were always current because the American Competitiveness in the 21st Century Act (“AC 21”) recaptured 130,000 numbers from 1998 and 1999. Per Country limits were postponed under a formula until EB demand outstripped supply. So, despite the surge of 245(i) cases, the lack of per country limit did not cause the system to seize up and stop.
If HR 3012 eliminates much of the EB backlog for India and China without replacing it with an equally long queue for the rest of the world, then the problem of counting derivatives will lose much of its salience. It will be downgraded from a fundamental flaw to a minor annoyance. If, however, EB backlogs continue to stretch from here to eternity, then not much would have changed and the tyranny of priority dates will remain. As of this writing, no one knows whether or when Congress will act nor what the final shape of any new law will be. We must be ready for change but plan for more of the same.
Since there is no national consensus that will prompt or allow Congress to expand the immigrant quotas themselves, unless we are willing to watch this slow death in silence, the President must act on his own and is not prevented from doing so under the INA. Doing so will double or triple the number of available green card numbers without the creation of a single new visa. The waiting lines will disappear or be dramatically reduced Any discussion of possible executive action must consider the possibility that Congress will address the issue on its own. This is certainly to be preferred. We are properly reminded of what the Supreme Court taught in Lorillard v. Pons:
So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.
Since derivatives have always been counted under the INA, Congress can be presumed to know that. H.R. 3012 provides an opportunity for Congress to address this issue. Neither the House nor Senate version of H.R. 3012 does so. What lesson do we draw from such silence? One such would be that Congress did not intend to disturb this prior practice. Another is that H.R. 3012 deals only with removal of per country EB caps and upward revision of per country family based percentage. The issue of not counting derivatives is simply outside the contemplation of the Congress at this time. In order to clarify this ambiguity, we urge Congress to seize this moment to state plainly that derivatives should not be counted against the immigrant visa cap. Out of an abundance of caution, and to allow full opportunity for legislative consideration, the President should defer any executive action until Congress has had an opportunity to amend the bill in this fashion. But patience, while a virtue, is not without limit. Should the Congress not act, the need for the President to step forward remains. You are perfectly correct Mr. President- we cannot wait. As the Great Rabbi Hillel asked:” If not now, when?”
 John F. Kennedy: Address of Senator John F. Kennedy Accepting the Democratic Party Nomination for the Presidency of the United States – Memorial Coliseum, Los Angeles, available at http://www.presidency.ucsb.edu/ws/ index.php?pid=25966#ixzz1e7mJzTBf (last visited Dec. 20, 2011)
 See e.g Obama uses orders to bypass Congress, Financial Times, October 31, 2011, available at http://www.ft.com/cms/s/0/6a5a3f66-03d2-11e1-bbc5- 00144feabdc0.html#axzz1h0MtZ5Nu (last visited Dec. 20, 2011).
 See Stuart Anderson, Waiting and More Waiting: America’s Family and Employment-Based Immigration System, National Foundation for American Policy Brief, October 2011, available at http://www.nfap.com/pdf/WAITING_NFAP_Policy_Brief_October_2011.pdf (last visited Dec. 20, 2011).
 H.R. 4300, 101st Cong. 2d sess. (1990); available at http://thomas.loc.gov/cgi-bin/query/z?c101:H.R.+4300 (last visited Dec. 20, 2011).
 Former Congressman Bruce Morrison (D-Ct), the House floor manager for IMMACT 90, told the authors on August 31, 2009 that there is no basis in IMMACT 90 to argue that dependents should be exempt. He does say that the House bill HR 4300 would have exempted dependents but the EB level in the House bill would have been much lower-75,000 principals multiplied by 1.5 to give a grand EB total of 187,000; however, this House proposal was rejected in Conference. The goal in Conference was to set a total number. The House conferees wanted more but former Senator Alan Simpson (R- Wyo) wanted less and did not like exemptions. Ultimately, the EB number was set at 140,000. See Informal Interview of Congressman Bruce Morrison by Gary Endelman on August 31, 2009 (on file with the authors).
 Unfortunately, the authors confirmed in a telephone conversation on November 21, 2011, that the USCIS Office of Immigration Statistics does not track the numbers of permanent resident admissions according to the size of family unit so our conclusions as to its effects are necessarily impressionistic though no less logical.
 Music and lyrics by Paul Simon (1977), available at http://www.paulsimon.com/us/song/slip-slidin%E2 %80%99-away (last visited 12/20/2011).
 See the January 1, 2005 Visa Bulletin notes that explain it all (Part D, Items 1 and 2), http://travel.state.gov/visa/bulletin/bulletin_1360.html > Archived visa bulletins > January 2005 (last visited 12/20/2011).
Copyright 2012, Cyrus D. Mehta and Gary Endelman. All rights reserved.
This article is a revised and updated extract from The Tyranny of Priority Dates by Gary Endelman and Cyrus D. Mehta, 15 Bender’s Immigr. Bull. 469 (Apr. 1, 2010). The online version of The Tyranny of Priority Dates dated March 25, 2010 is available at http://www.scribd.com/doc/45650253/The-Tyrannyof-Priority-Dates-by-Gary-Endelman-and-Cyrus-DMehta-3-25-10.