Reduce the visa backlog or most of us won’t live to see the “end of the line”: a (relatively) simple explanation.

On Behalf of | Feb 4, 2013 | Firm News |

A common issue in comprehensive immigration reform debates is how to fairly provide status those who are here illegaly without “jumping the line” ahead of those who have been waiting for residency outside the U.S., often for many years.  Many reform proposals call for a temporary status for those who are here illegally, but a requirement they not become residents ahead of those already in the system. Others argue any sort of status for those here illegally unfairly prejudices those who have been waiting abraod.  

If those who are here illegally must wait until the visa lines are cleared, however, any immigration reform bill must also drastically shorten wait times.  Though perhaps not as glamorous as a way for 10 to 11 million people to legalize their status, backlog reduction is crucial if the people earning temporary status are actually going to become residents.

How long, however, is the “line” right now? It is impossible to give an exact timeframe, but some stories have said that the delay can be over twenty years. So, is the wait actually that long? Actually, it may be much worse- more than eighty years- unless there are tremendous changes.

Here is a simple explanation how the backlog came to be, and when it might clear under the current system. It is worth keeping in mind that the precise method of allocation of visas is exceedingly complicated, nuanced, and confusing. Below is summary to explain the issue, not an exhaustive explanation of the entire visa system.

There are actually several “lines”

The main reason for a visa “line” is that there is an annual limit of 226,000 family-based immigrant visas. Not every family based visa is subject to this limit, and there are some important exceptions to this number, but nonetheless it is a valuable starting point. There is also a similar system for employment-based immigration, but this article focuses on family-based since it is more backlogged, and therefore presents the likely “end” of the line after which beneficiaries of comprehensive immigration reform could file for residency.

What happens when there is demand for more than 226,000 visas? It creates, in essence, a line. Even with a simplified explanation, however, it is important to know that not every visa petition is created equal; there are actually several lines.

These 226,000 visas have two key rules in their distribution. First, there are four (or five, depending how you count) “preference categories” based on the immigration status of the petitioner and the relationship to the beneficiary. Each category is allotted a certain number of visas, but the wait for the fourth, or lowest, preference category (for the siblings of U.S. citizens), is intended to be the longest.

On top of the overall limit and preference categories, no more than 7% of the total family-based immigrant visa numbers can be issued to citizens of any one country. With an overall limit of 226,000, this 7% rule effectively means there is 15,820 per country cap on immigrant visa issuance.

What happens to people who are from a country which would ordinarily receive more than 15,820 immigrant visas without the per-country caps? They have to wait in an even longer line. For family-based immigration, this is especially a problem for citizens of the Philippines and Mexico.

How does the government handle the lines? Why do people say there is a twenty year wait?

To handle the immigrant visa quotas, the Department of State issues a monthly visa bulletin. In the visa bulletin, the Department of State estimates at what point in the line they can accept residency applications to meet, but not exceed, the overall, preference, and per-country caps. The place in line is a “priority date”, or the date when a family member first filed the visa petition.

The twenty-year backlog which people discuss is mainly because the oldest priority date listed in the February 2013 visa bulletin is June 1, 1989, for the Filipino siblings of United States citizens. This means that people in this category who began the immigrant visa process before June 1, 1989 can now finally apply for residency. Again, the siblings of United States citizens are the lowest priority visa category, and the Philippines is one of the countries subject to special lines due to the per-country limits.

Estimates of a twenty-year wait look backward, when we need to look forward.

It is crucial to understand, however, that the current priority dates reflect how the lines moved in the past, not how they will move in the future. Keep in mind that immigrant visa petitions are not always filed at the same rate. To figure out the length of the line now, you need to know how many people are still waiting, not how many people those in the front of the line waited for.

To illustrate, think about a line in a bank. If you get in line, and there are nine people in front of you, then you are tenth in line. It does not matter if the person at the teller now had to wait in front of two people or twenty-two, you are still tenth either way.

The current priority dates are the front of the lines. Of those in front, the longest waiting have been waiting nearly twenty-four years. The concern for clearing the backlog, however, is not how long people who started years ago had to wait, but how long someone getting in line now has to wait.

How long will the wait be?

In November 2012, the Department of State shed some light on how long the lines really are, with a report that summarized the number of immigrant visa petitions on file by category and country. This whole report is worthwhile, but a summary at page 11 highlights how bad the problem is.

Remember, because of the per-country and overall limitations, no more than 15,820 family-based immigrant visas can be issued to citizens of any one country. There are, however, 1,311,960 family-based immigrant visa petitions from Mexico on file across preference categories.

If a 1,311,960 immigrant visa backlog is cleared 15,820 visas at a time, it would take over 82 years to reach the end of the line.

This number is illustrative, and not a firm prediction, which would take into account several other factors. For example, many of the people with pending petitions may be ineligible for other reasons, so more than 15,820 people fall out of line annually. (At this extreme level, even the mortality of the beneficiaries would be an issue.) On the other hand, the report also shows that more than half of the pending visa petitions are in the lowest preference category- so perhaps the wait would be over 80 years at the current pace.

It is also vital to remember that most versions of comprehensive immigration reform also include reducing the visa backlog. Again, however, those plans are not yet very specific. The value of comprehensive immigration reform for millions, however, will depend on whether the visa backlog is resolved.

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