By Attorneys Eric R. Welsh & Nancy E. Miller
When President Trump gave his State of the Union speech in January, he warned about the threat of “chain migration,” claiming (incorrectly) that “a single immigrant can bring in virtually unlimited number of distant relatives.” He proposed “fixing” this “problem” by limiting sponsorships to spouses and children. In effect, President Trump proposed eviscerating American family-based immigration in the supposed interest of preventing terrorists from immigrating to the U.S.
In truth, the dangers of “chain migration” are more myth than reality. America’s family-based immigration process is inherently limited, with procedural hurdles that mitigate most of the dangers that anti-immigrant fear-mongers profess. The real danger, however, is that America’s immigration laws are not sacred; they are subject to the whims and wills of politicians (and the people who elect them). If lawmakers (or their constituents) believe in the false dangers that anti-immigrant hardliners disseminate, or if Congress simply seeks a compromise to appease hardliners, Trump could get his way, and certain family-based categories could be lost.
Family unification is a fundamental right, and one of the bedrock principles of U.S. immigration law. America has historically defended the right of a citizen or a permanent resident to bring certain close family members to the U.S. The process requires filing a petition with the Department of Homeland Security to classify a relative for immigration purposes. If the petition is approved, the relative needs to wait for a visa to become available. Once available, the relative can apply for a green card.
The right to file a petition for a family member is not absolute. Only certain persons can file petitions for certain relatives. A U.S. citizen can file a petition for a spouse, parent, child, or sibling. A permanent resident (green card holder) can file a petition for a spouse or an unmarried child. Neither can file a petition for a grandparent, an aunt or uncle, a niece or nephew, or a cousin. Derivatives of the beneficiary family member (spouses and children) can apply for visas when they are available, but if children age out (i.e., turn 21) before the visa is ready, they may not be able to join.
Once a petition is approved, the beneficiary family member needs to wait for a visa to become available. The wait time for visa availability can range from months to decades. For example, a petition filed today from a U.S. citizen on behalf of a brother in the Philippines would result in a visa available in about 25 years.
When the visa is available, the family member needs to apply for a visa, submit to rigorous background and security screening, and overcome any grounds of inadmissibility (bars to immigrating). Simply filing a petition and getting that petition approved is not enough—it is only the beginning of a long road to immigrating.
So, with wait times in some categories exceeding 10-20 years, and with the procedural hurdles and other barriers in place, is filing a petition even worth it? There are at least three reasons to consider filing a petition now:
First, you’ve got to start somewhere, and the earlier the better. The sooner the petition is filed, the sooner the visa will be available. Years will pass, and for some, family sponsorship is the only means to immigrate. Additionally, not every family-based petition will take 25 years to ripen into a visa. Severe backlogs tend to occur in the categories for siblings and married sons and daughters, with backlogs tending to be worse in Mexico, India, the Philippines, and China. Immediate relatives (spouses, children, and parents of U.S. citizens) are not subject to backlogs, regardless of the country of origin.
Second, the petition could be the basis for some other benefit aside from the visa. For example, petitions filed before April 30, 2001 can, in some instances, “grandfather” an intending immigrant, allowing the immigrant to apply for a green card in the U.S. when she would not otherwise have been eligible. There may be something like “grandfathering” in the future that would benefit a person who has a petition filed now.
Finally, with so much talk about the “dangers” of “chain migration,” there is a real concern that Congress could pass a law that would abolish certain family-based categories, like siblings or married children. Anyone who can file a petition for a relative should file the petition, before they lose the right to do so.
If you are a U.S. citizen or a permanent resident with foreign family members, consider talking to an immigration lawyer to learn more about the family-based immigration process. Family unity is a core national value, and families make communities stronger. We are a nation of immigrants, strong because we are diverse. We should not turn our backs on our history and our values.
