THE BLOG
02/20/2013 12:01 pm ET Updated Apr 22, 2013

Stand in What Line, Mr. President?

I cringed when I heard Republican presidential candidate Mitt Romney talk of "self- deportation" and going back home to "stand in line" as a way or resolving our illegal immigration problem. I heard President Obama commit the same error during his State of the Union address. He announced that immigration reform should consist of "going to the back of the line, behind the folks trying to come here legally." Where, I asked, are the advisers knowledgeable in immigration law to enlighten him that there is no line to stand in?

Let me explain. Legal immigration is based on eligibility for specific visa categories established by Congress. They are basically divided into two classes: family based preferences (FP) and employment based (EB) immigration. The categories are known as preferences because both are further subdivided into segments in the order of the legal preference enumerated in current law. Immigration is meted out by an annual numerical limitation (quota) which is divided by country of birth and further subdivided into preferences (FP or EB) and each again segmented into visa categories. Each preference and visa category is numerically limited. For a more complete explanation, see here.

To clearly understand the immigration system, we must also rely on correct terminology.

I am often asked "Why is it more difficult for some countries to get citizenship?" First, the term citizenship is misplaced. Citizenship means a U.S. passport and the right to vote. Before one may become a U.S. citizen, one must be a lawful permanent resident (LPR) residing in the U.S. for five years, or three years if married to a U.S. citizen. An LPR is a person who has a green card, having immigrated through the quota system. So the question should be: Why is it more difficult for people from some countries to immigrate? This, however, implies that the law is different for each county. This is not the case. The law is same for all who seek an immigrant visa (IV or green card). The difference is that some people do not have close family relatives who are LPRs or citizens, or do not have the requisite skills or assets required to qualify for one of the EB visa categories.

Another impediment is that even when one qualifies, the demand for IVs exceeds the annual limitation for the country of origin and visa category, causing a backlog or long line to form. To get into the line, one must initiate the immigration process by having the qualifying U.S. relative file a visa petition with the U.S. citizenship and immigration services (USCIS). In the EB category, it is usually the prospective U.S. employer who initiates the process. The exceptions are in the upper visa preferences as aliens of extraordinary ability, those with advanced degrees immigrating in the U.S. national interest, and still others who immigrate through investment of $500,000; they may initiate the process without an offer of employment. The U.S. Department of State, responsible for allocating immigrant visas according to this quota system, publishes the Visa Bulletin on a monthly basis. This information allows one to follow his place in line.

The filing date that initiates the process becomes the visa priority date for purposes of immigration. This is the place in line. The countries that experience the greatest wait in line are China, India, Mexico and the Philippines. The particular visa categories also have long lines, the longest being brothers and sisters of U.S. citizens, which has a 12 year wait. In the EB category it is the unskilled worker.

You can see from the Visa Bulletin that only a limited class of individuals may qualify for immigration. Worse yet, the others who seek to become part of the U.S. will not qualify for a temporary visa, not even as visitors. This is because if they cannot demonstrate sufficient ties to their home country, like stable employment, assets such a bank account and/or ownership of property, they will likely be deemed a poor risk as far as returning to their home country is concerned. That is why they come to the U.S. by simply crossing the border. There is no other way.

It should now be clear that immigration reform cannot demand that the applicant go home and stand in line; there is no line for them to stand in, unless Congress creates a new visa category for them. But that would generate multiple new problems, among them having to remove them. Such mass removal would not only be inhumane, but would cause an unmanageable burden for our courts which are simply not equipped to handle a load of 11 million new cases. It would cause an unimaginable nightmare both for the government and those waiting to be heard. The other solution would be for Congress to legislate a one time additional batch of visa numbers that would clear all existing backlogs of our legal immigration process, bringing current all those who have been waiting in line. That would eliminate objections to cutting in line and be fair to all prospective immigrants.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.