On Monday, the Supreme Court dashed the hopes of noncitizen children who had already waited years for visas to come to the United States with their families. Federal law allows immigrants to bring their unmarried, minor children with them to the U.S., but those same laws put strict annual quotas on visas, forcing applicants to wait years for a visa to become available. If the children turn 21 years old during that waiting period, they must be left behind. In its decision in Mayorkas v. Cuellar de Osorio, the high court held that these older children must get in the back of a new line and start the visa petition process all over again, denying them credit for the years they have already spent waiting.
But don't blame the Supreme Court because the real problem is that there are too few visas for eligible applicants — a problem only Congress can solve.
Federal law puts quotas on the number of immigrant visas available each year, and it last adjusted those numbers in 1990 when far fewer immigrants were seeking entry into the U.S. Today, approximately 4.5 million prospective immigrants are waiting for visas — up from a backlog of 3.9 million in 2001 and more than four times the backlog in 1994. The number of family-based visas is capped each year at 226,000, far below the demand, and each country is limited to7 percent of the visas allocated each year. Not surprisingly, then, natives of countries with a high rate of emigration to the U.S., such as Mexico and the Philippines, wait for years, sometimes decades, for a visa to join family members in the United States.
Delays are also a problem for immigrants applying for visas based on an employer's sponsorship. By definition, these immigrants are coming to the U.S. to fill jobs for which there are no qualified American workers — jobs that need to be filled now. Yet under current quotas, only 140,000 employer-sponsored visas are available each year, requiring immigrants to wait in line for years.
Many of the 4.5 million seeking entry are left waiting for visas in their home countries, separated for years from their parents, spouses and children, who have started lives in the United States. Others have resided in the U.S. on temporary visas since they were young children and are now living in limbo while they wait to adjust their status from a temporary visitor to a lawful permanent resident.
Immigration law did not always include quotas. Until the 1920s, the law put no limits on the number of people who could come to the U.S. in any given year. Then, in 1924, Congress sought to preserve the country's racial and ethnic make-up by severely restricting emigration from southern Europe, creating a system of intentional ethnic and racial discrimination that was finally abandoned in 1965, when Congress passed the Immigration and Nationality Act in effect today. Although the INA is carefully neutral with regard to race and ethnicity, it kept the quota system in place, and Congress has not updated those quotas in nearly 25 years.
Many immigration experts contend that the influx of undocumented immigrants to the U.S. over the last few decades is largely due to outdated quotas that fall short of satisfying both this nation's need for immigrant labor and its residents' desire to reunite with close family members living abroad. If we expanded the quotas, these experts believe we would eventually see a decrease in our current population of approximately 12 million undocumented immigrants.
A year ago, the Senate passed an immigration reform bill that created a new visa system to clear out the backlogs by 2021. To prevent future backlogs, the Senate bill would eliminate country-specific caps on immigration from China, India, Mexico and the Philippines — caps that have resulted in wait times of over 20 years for many of those countries' natives. It would also exempt spouses and minor children of lawful permanent residents from the quotas so that nuclear families can remain together. And it would exempt highly skilled immigrants, which means that these desirable immigrants will not have to wait to put their talents to work for the U.S. economy.
The Senate bill does not simply expand the number of visas, however. The bill also eliminates visa preferences for siblings of U.S. citizens, as well as for married children of U.S. citizens who are over age 31 — groups that make up a sizable portion of the current backlog. Although some will criticize the elimination of these categories, the long wait times made them chimerical for many. And supporters of the bill reasonably concluded that it is kinder, as well as more efficient, to eliminate some family-preference categories to avoid long waits for all.
Unfortunately, however, the House has yet to take action on immigration reform, and time is running out in this legislative session. Without visa backlog reform, millions of people's lives are in limbo as they wait for their chance to start a new life in the United States. As Justice Breyer put it during oral argument in the Mayorkas case, "They've all been waiting for years and years and years, and it becomes hard to choose among them."
That is something we can all agree on.
Amanda Frost is a law professor at American University Washington College of Law. Her email is firstname.lastname@example.org.
To respond to this commentary, send an email to email@example.com. Please include your name and contact information.