Memo

To: Senators Lindsay Graham and Dick Durbin

From: Immigration Policy Workgroup
Re: Family Reunification Policy: Reducing the Costs of the Visa Queue to the United States and
its Immigrants
Date: May 13, 2018

Executive Summary
This is the second of three memos discussing the policy options for reducing the negative effects
of a U.S immigration “visa queue”. The U.S immigration visa queue is currently 4,060,046
persons long and counting. Each of these immigrants has already been approved for entry into
the U.S and is only awaiting a visa that will grant them lawful permanent resident status. The
U.S remains one of the few countries whose primary basis for immigration policy is family
reunification---this presents problems. More specifically, the preference categories that create a
hierarchy for immigration do not prevent arbitrary extensions of an immigrants wait time in the
visa queue; these arbitrary extensions are most likely to occur because of “aging out” and
delayed marriage, presented below. Past Congressional members, such as Barbara Jordan and
others have tried to reform the preference categories so that they reflected more realistic
expectations for future immigrants, but largely to no avail1. The current administration favors an
approach that would give spouses and children of lawful permanent residents and U.S citizens a
higher priority than all other preference categories2. It is within this context that we begin to
present and evaluate potential policy options.

Problem Definition
As of 2017, the “visa queue” stands at 4,060,046 approved persons waiting for a visa. As
indicated in table 1, those in the lowest tiered category make up the most significant amount,
2,344,993, of the overall visa queue3. In part, the current visa queue is caused by statutory and
processing waiting periods. At times “visa retrogression” occurs. This occurs when the visas
begin to take longer to process, and the overall wait time for those in the queue can increase, and
the visa queue itself gets longer. The visa queue is also the result of per-country ceilings, which
limit the total number of lawful permanent resident (LPR) admissions to seven percent per of
total immigration to the country each year. Because of the per-country ceilings, petitioners from
oversubscribed countries (countries with the greatest amount of those waiting in the queue) such
1 Kandel, William A. (2016). U.S. Family-Based immigration Policy (Report No. 43145). Retrieved from
University of North Texas Congressional Research Service Reports website.
2 Susan Davis and Scott Detrow, “White House Outlines Trump’s Immigration Proposal,” National Public Radio.
Retrieved from: https://www.npr.org/2018/01/25/580858256/white-house-releases-draft-immigration-plan.
3National Visa Center (2017). Annual Report of Immigrant Visa Applicants in the Family Sponsored and
Employment based Preferences. Retrieved from https://travel.state.gov/content/dam/visas/Statistics/Immigrant-
Statistics/WaitingList/WaitingListItem_2017.pdf.
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as Mexico, the Philippines, China, and India experience longer wait times to receive a visa4. For
example, unmarried Filipino children who were waiting in the visa queue and had been filed on
or before November 1, 2003, were being processed on February 1, 2016, more than twelve years
later. Such a long wait time can be one of the driving factors for violating U.S. immigration law.
Pending petitioners can’t wait for a permanent visa and some of them may choose to either
violate the terms of their temporary visas by overstaying in the United States or by entering the
United States illegally5.

The other problem caused by the visa queue, is creating limitations on visiting relatives in the
United States. It is assumed in U.S law that all aliens seeking temporary admission to the United
States wish to become a permanent resident. As a result, aliens with pending LPR petitions, who
intend to live permanently in the United States, as well as foreign nationals with U.S. citizen and
LPR relatives, who want to either tour the United States or visit their relatives living in the U.S,
are often denied nonimmigrant visas to visit. As an example, unmarried adult Filipina daughters,
of U.S. citizen parents, are often denied a tourist visa unless they can demonstrate strong ties to
the Philippines to prevent them from staying in the United States. If a tourist visa is denied and
they don’t have an employment-based admission, they must wait for the LPR status that may
take more than ten years.

The long waiting time also creates “aging out,” which means the change in eligibility for a
foreign national to receive an immigration benefit because of changes in their age. Minor
children of U.S. citizens are protected from aging out by the Child Status Protection Act of 2002;
however, if minor children of LPRs who are sponsored under a higher category and then they
turn 21,they automatically age out of the higher category and drop to a lower one, increasing
their overall wait time in the visa queue. Marital status also affects an immigrants’ treatment
under immigration law. The fact that unmarried children are in a higher preference category and
married children are in a lower preference category may motivate potential LPR petitioners to
delay marriage6.

It is important to point out, as one Congressional Research Service report noted, “…a visa queue
or waiting list has accumulated of persons who qualify as immigrants under the Immigration and
Nationality Act (INA) but who must wait for a visa to receive lawful permanent status. As such,
the visa queue constitutes not a backlog of petitions to be processed, but, rather, the number of
persons approved for visas that are not yet available due to the numerical limits enumerated in
the INA”7.
4Wasem, Ruth E. (2011). Numerical Limits on Employment-Based Immigration: Analysis of the Per-Country
ceilings.(Report No. 42048).
5Wasem, Ruth E. (2010). Immigration Visa issuances and Grounds for Exclusion: Policy and Trends. (Report No.
41104).
6Wasem, Ruth E. (2014). Non-Immigrant Overstays: Brief synthesis of the Issue. (Report No. 22446).
7 Kandel, William A. (2016). U.S. Family-Based immigration Policy (Report No. 43145). Retrieved from
University of North Texas Congressional Research Service Reports website.
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Fig. 1: Number of Applicants on Waiting Lists in Family Sponsored Preference Categories:

As of Nov. 1 2016 v. Nov. 1 2017

Source: National Visa Center (2017). Annual Report of Immigrant Visa Applicants in the Family Sponsored and
Employment based Preferences. Retrieved from https://travel.state.gov/content/dam/visas/Statistics/Immigrant-
Statistics/WaitingList/WaitingListItem_2017.pdf.

Current U.S. family-based immigration policy is undergirded by the principle of family

reunification. This principle was solidified by the passage of the Immigration and Nationality
Act in 1952. The act established the legal basis for a preference system which ranks immigrants
according to their relationship with their U.S. based relatives. The INA makes a clear
differentiation between the immediate relatives of U.S. citizens and other family preference
immigrants. The immediate relatives of U.S citizens are allowed to immigrate to the U.S without
restriction, whereas all other family preferences are placed into a hierarchy and are subject to a
“permeable cap” of total family based admissions. The hierarchy is broken into 4 groups and is
structured as follows: 1.Unmarried sons and daughters of U.S. citizens, 2(A). Spouses and minor
children of lawful permanent residents (LPRs), 2(B).Unmarried sons and daughter of LPRs, 3.
Married sons and daughters of U.S. citizens, and finally, 4.Siblings of U.S. citizens. The
permeable cap for family-based admissions is 480,000 immigrant visas annually. As mentioned
above, the INA also created per-country ceilings, which limit the total number of LPR
admissions to seven percent per country each year. Both the preference ranking system and the
per-country ceilings have been integral to creating a visa queue.

Objectives
There are five objectives in the development and evaluation of policy options:
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1. Allow spouses and children of U.S. citizens and LPRs to get in the United States quickly
2. Enable temporary visit to the United States while petitioners are in the visa queue
3. Decrease administrative cost of managing visa queue
4. Increase certainty on visa processing time
5. No change to total number of family-based immigration visa

Allow spouses and children of U.S. citizens and LPRs to get in the United States quickly:
Separation from spouses and children makes an especially serious impact on the families. As
mentioned above, at times it takes more than ten years to enable petitioners to live with their
loved ones. It also generates the problems such as “aging-out”. Spouses and children of U.S.
citizens and LPRs should be processed with the highest priority. The processing time must be
reduced in order to unite families in an acceptable amount of time.
Enable temporary visit to the United States while petitioners are in the visa queue: Like Filipina
daughters case stated above, petitioners are often denied a temporary visa and as a result, lose
any way to visit their immediate relatives until a permanent visa is issued. This type of unfair
treatment should be addressed by enabling family member to visit their relatives. Current policy
and its approach leaves close relatives separated and stranded.
Decrease administrative cost of managing visa queue: The long wait for visas has a significant
impact on the administrative cost. Reducing the visa queue can substantially reduce the amount
of funding allocated towards immigration within the U.S. federal budget. According to USCIS
FY18 Budget, the agency “requires $1.756 billion, 8,311 Positions, and 7,895 Full-Time
Equivalents (FTE) to sustain mission critical services”8. The Immigration Examinations Fee
Account (IEFA) is the primary funding source for these services. The fees collected with the
submission of applications and petitions requests are deposited into the IEFA and later used to
fund the administrative cost. If the visa queue is minimized, unaccounted funding can be
allocated towards other mission goals of the agency. .
Increase certainty on visa processing time: Petitioners are unable to build their life’s plan
because they don’t know when they will receive a visa. The entire process can take up to ten
years or even more. The unrealized hope is extremely stressful to petitioners and their families.
At time provoking decisions like entering the United States illegally rather than waiting.
Individuals should be granted a reasonable waiting time with clear and meaningful time leads.
Presently, families can submit an “Outside Normal Processing Time” service request as their
only mode of inquiry.
No change to total number of family-based immigration visas: Even though the visa queue is a
problem, it is not feasible to increase the total number of family-based immigration visas.
Adherence to the current annual limit of 480,000 immigrant visas must be considered a priority.
The potential policy option must not increase the annual total number of immigration visas
issued.

8 Department of Homeland Security (2018). United States Citizenship and Immigration Services
Budget Overview. Retrieved from https://www.dhs.gov/sites/default/files/publications/USCIS
%20FY18%20Budget.pdf
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Objectives Evaluative Criteria

Spouses & children get in quickly Estimate of reduction in wait time

Enable temporary visits Expands visiting eligibility

Decrease administrative cost Estimated reduction in cost over 5 year period

Increase certainty on processing time Creates a metric for accurate tracking and
projected visa wait time

No change to total number of visas Maintain the annual cap at 480,000 visas

Policy Options
There are several policy options which can be used to reduce the detrimental effects of delayed
family reunification on an immigrant and their U.S based relatives. These policy options are also
helpful in addressing the costs to the U.S as a whole. The policy options include: The creation of
waivers for those who are waiting in the visa queue; the creation of a visa “spilldown” system
within the current four immigration categories; increasing administrative resources for
administration and processing costs; allowing immigrants to “lock-in” their status at the time of
application to avoid falling into a lower preference category, and expansion of the V visa to
immigrants in all four preference categories.
Visa Queue Waivers: Congress could allow immigrants who have been waiting in the visa
queue for a specific period (5 years or more) to be allowed a waiver that would then grant them
LPR status and take them out of the visa queue. Congress could provide waivers for immigrants
on the basis of the per-country ceiling limits or the numerical worldwide limits9. The waiver
option would allow families to reunify more quickly, because they would wait no longer than the
designated period. This would increase certainty for immigrants and their families and it would
also reduce all the other intangible stresses of living without a father, husband, or sibling. Not
only would it allow for immigrants to reunify with their families more quickly, but it would also
have the potential to reduce administrative and processing costs over time as the queue becomes
smaller. The waivers also have the added benefit of deterring immigrants from immigrating
illegally because they will no longer face long statutory waiting time that will force them to take
such drastic measures.
A Visa “Spilldown” System: A Visa spilldown system would allocate the visas in their normal
proportions to what they are today, however, any unused visas from any of the categories would
spill down to the next lowest preference category. If there are any unused visas within annual
limits, after they have been spilt down from all four categories, the unused visas would be added
to the new years’ total visa amount10 The creation of a spill down system would more rapidly
reduce the number of people in preference categories three and four, where the majority of
9 National Immigration Forum Staff (2012). Immigration Backlogs are Separating American Families. National
Immigration Forum. https://immigrationforum.org/blog/immigration-backlogs-are-separating-american-families/.
10 The United States Commission on Immigration Reform (1991). Nuclear Family Immigration. Washington, D.C.
Government Printing Office.
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immigrants on the visa queue stand. Having unused visas spill down would allow for these
family members to reunite with their families in a shorter period. This policy answer would also
address the unused visas in other categories that currently go unused annually. While the number
is small, it is better than visas going unused by those who are currently waiting in the queue. The
significant problem with this policy option is that because there are so few visas unused each
year, the number of people in categories three and four may not be reduced substantially in
comparison to the preference categories overall size.
Reallocation of Administrative Resources: Immigrants pay for the cost of processing their own
applications through the use of application fees when their family relatives begin to sponsor them
and throughout other parts of the immigration process. Congress, however, has also put a
mandate on the use of these fees so that the fees are being used for things other than the direct
processing and administrative costs of running the U.S immigration system. If Congress ends the
mandate for outside uses of the funds and uses the funds only for the immigration system, the
processing time and administrative burden should decrease11. With increased resources the
processing time for each immigrant should be reduced allowing them to reunite with their family
sooner. The total cost of the immigration system itself would also be reduced as it worked more
efficiently and reduced the cost of processing each immigrant.
The Creation of a “Locked-in” Status: Congress could pass a bill that would ensure that
immigrants would not have to face the prospect of falling into lower preference categories.
Congresses’ bill could mandate that if a person reaches the age of 21 while in the queue they stay
in the preference category that they started in. The locked-in status would also apply to marriage,
so that unmarried sons and daughters of both U.S citizens and LPR would not have to delay
marriage to avoid dropping into a lower preference category12. Creating a locked-in status would
provide considerable certainty for those in the visa queue. It would allow children to reunify with
their families sooner and would not allow time to cause the children undue amounts of anxiety
and stress. It would stop immigrants from being removed from their families for longer period of
time simply because of the passage of time itself. Children could also build lives in their
countries of origin, without the fear of reprisal for simple life accomplishments such as marriage
or, for that matter, having their own children. This option also has the potential to reduce
administrative costs as it simplifies the immigration system.
The Expansion of the V Visa: “The Legal Immigration Family Equity Act enacted on
December 21, 2000, created a nonimmigrant visa category, the V visa, with specific provisions
for certain spouses and children of LPRs…V visas, therefore, allowed these family members to
be in the United States with their LPR spouses and parents while waiting to complete the
immigration process, after a 3 year waiting period”13. The V visa should be expanded beyond
preference category 2(A) to all other categories, so that those who are in the visa queue can be
reunited with their family members as they wait to receive their visas for LPR status. This
expansion would allow families to reunify much faster (all categories would only have to wait a
maximum period of three years). The expansion of the V visa would also reduce the need for

11 National Immigration Forum (2012).

12 National Immigration Forum (2012).
13 U.S Department of State, Bureau of Consular Affairs (2018). https://travel.state.gov/content/travel/en/us-
visas/immigrate/family-immigration/nonimmigrant--visa-for-spouse-and-children-of-a-lawful-permanent-
resident.html. Accessed 05-11-2018.
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those on the visa queue to immigrate illegally as they would not be in the queue nearly as long.
This option does, however, have the potential to increase administrative costs because it is an
expansion program. If administrative capacity was not increased this could also slow the
processing of LPR admission based visas.

Option Description

Visa Queue Waivers Waivers which would be provided to

immigrants who have been waiting in the visa
queue for 5 years or more. The waivers would
be applied to all four preference categories.

Visa “Spilldown” system This visa system would allow for unused visas
to spill down from the each preference
category until the unused visas have been used.
Unused annual visas that are unused would
roll-over to the next year.

Reallocation of Administrative Resources Would reallocate any resources which are

intended to be used for the purpose of
administering the visa queue or for processing
visas which are currently being used for other
purposes.

Creation of a “locked-in” Status Would lock in an immigrant’s status once they

enter the visa queue. A “locked-in” status
would prevent aging out and delayed marriage
among immigrants in the visa queue.

V Visa Expansion V visas allow those in the visa queue to live in

the U.S with their family members after a three
year waiting period. Expansion beyond LPRs
would allow nearly all immigrants in the queue
to reside in the mainland U.S. until they
received their LPR Status.