How A New Interpretation of INA §203(d) Can Remove Immigrant Visa Backlogs

How A New Interpretation of INA §203(d) Can Remove Immigrant Visa Backlogs

The U.S. immigration system puts a limit on the number of immigrant visas (i.e. green card) that can be granted to aliens in a given year. The annual numerical limits for the employment-based preference categories and the family-based preference categories are 140,000 and 226,000, respectively. Within each category, the numerical limits are further divided into per-country quota.As of the time of writing this article, if one were to file a labor certification under the India employment-based, EB-3 category, it will take over 10 years for the Beneficiary’s priority date to become current. Even worse, the married sons or daughters born in Mexico to U.S. citizens have to wait more than 20 years in order for their priority dates to become current. INA § 203(d) specifies who will be counted against the annual numerical limits, and a new interpretation of INA § 203(d) may eliminate all backlogs in the employment-based preference categories and make them “current”. The new interpretation may also significantly accelerate the cut-offs in the family-based preference categories.

INA § 203(d),provides:

A spouse or 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.

The above regulation does not explicitly authorize or prohibit the Department of State to count derivative family members against the annual limits under the employment- or family-based preference categories. However, the Department of State has always interpreted the annual limits to include not only the principal Beneficiary, but also the spouse and children of the principal Beneficiary. The result of this interpretation is that many Beneficiaries in either category will have to wait years or even decades for their green cards. Even worse, many young people who were initially eligible for the green cards as derivative Beneficiaries are “aged out” by the time their priority dates become current, and therefore require a new basis for their own green card petitions, which may lead to additional wait time.

To address these concerns, President Obama is considering a new but equally plausible interpretation of INA § 203(d), which would count only the principal Beneficiaries of immigrant visa petitions toward the annual numerical limits. This interpretation, if implemented as a policy, would eliminate backlogs in the employment-based preference categories, whereby all categories in the employment-based preference systems would remain current for the foreseeable future. In the case of family-based preference categories, the new interpretation of INA § 203(d) would accelerate the cutoffs but the backlog would still persist.

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