Week 5 Readings

Family Based Immigration Overview

  • Historical Context

    • 1921: Congress transitioned from a race-based immigration admission system to a mathematical national origin quota system.

    • Numeric caps established for immigrants from various nations.

    • Favoritism shown towards Northern European countries over Southern Europe.

    • Ban on most immigration from Asia.

    • Qualitative Requirements imposed on immigrants including health and literacy checks.

    • Example: Mexican nationals, despite a lack of numeric caps, were often excluded due to health or literacy criteria.

  • 1965 Immigration Reform

    • Abolished facially discriminatory visa quotas.

    • Established a worldwide distribution system with identical visa ceilings for every country.

    • Adjustments made to increase family and employment-based visa numbers and introduced the diversity visa under the Immigration Act of 1990 (Pub. L. 101-649).

    • Immediate relatives (spouses of U.S. citizens, parents of U.S. citizens aged 21+, unmarried children under 21 of U.S. citizens) are exempt from numerical limits.

    • Reference: INA § 201(b)(2).

Preference Categories

  • Immigrants who are not immediate relatives apply through preference visa petitions which fall under four categories:

    • First Preference (F1): Unmarried sons and daughters (21+) of U.S. citizens.

    • Second Preference A (F2A): Spouses and children of lawful permanent residents (LPRs).

    • Second Preference B (F2B): Unmarried sons and daughters (21+) of LPRs.

    • Third Preference (F3): Married sons and daughters of U.S. citizens.

    • Fourth Preference (F4): Siblings of U.S. citizens (must have a common parent).

Numeric Caps Available

  • Detailed breakdown of numbers available under INA § 203(a):

    • F1: 23,400 + unused F4 numbers.

    • F2: Total of 114,200 + unused first preference numbers;

    • F2A: 77% of second preference limit (75% exempt from per-country limit).

    • F2B: 23% of second preference limit.

    • F3: 23,400 + unused numbers from F1 and F2.

    • F4: 65,000 + unused numbers from F1, F2, F3.

The Concept of Priority Date

  • The priority date is the date the preference visa petition is filed with USCIS.

    • Determines the waitlist position for immigrants (earlier dates are prioritized).

    • Immediate relatives do not experience this wait as they are not subject to numerical limits.

Conversion of Petition Categories

  • A child aging out (turning 21) from F2A, marital status changes, or petitioner’s naturalization can lead to conversion to a new category with a new waiting list.

  • Retention of priority dates is typically allowed unless the new relationship does not qualify under the family petition.

Derivative Beneficiaries

  • Derivative beneficiaries include spouses and children of principal beneficiaries immigrating together (INA § 203(d)).

  • There is no derivative classification for immediate relative petitions.

  • **Important Questions to Determine Eligibility:

    1. Does the principal beneficiary apply through a preference visa petition?

    2. Does that beneficiary have a spouse or child?**

  • If both questions are affirmative, the spouse or child qualifies as derivative beneficiaries.

Migration Process Through Family Preference System

  • Process involves two critical steps:

    1. Submission of visa petition.

    2. Application for permanent resident status post-approval (immediate relatives can proceed without waiting for a visa).

  • Immigration through family preference entails waiting until visas are available before moving to step two.

  • Each visa issued reduces the number of visas allotted for a specific country, leading to backlogs.

Example:

  • High demand for Mexican applicants results in a longer wait time compared to applicants from countries like France or Uruguay.

Tools for Estimating Visa Availability

  • The U.S. State Department Visa Bulletin is released monthly to help determine eligibility for migration.

  • Final Action Date shows current priority dates for family-sponsored preference cases, while Dates for Filing indicate potential early filing circumstances.

Impact of Child Status Protection Act (CSPA)

  • The CSPA aims to prevent children from aging out of eligibility due to reaching 21 while waiting for processing.

  • Main beneficiaries include children of U.S. citizens whose petitions will not convert upon reaching 21 if filed before turning 21.

  • Also affects children of LPRs upon their parents’ naturalization status change.

Procedures and Effects

  • Changes in greencard application processes often allow immediate relatives to continue to process their applications upon the naturalization of their parents.

  • The law secures the immediate relative status for minor children, ensuring access to their derived status and allowing for adjustment if aged out when arriving at priority date.

Legal Cases and Definitions Surrounding Same-Sex Marriages

  • Several key cases include Adams v. Howerton, focusing on the recognition of same-sex marriage at federal levels.

  • Legal interpretations base recognition upon state laws and direct application to immigration petitions.

  • BIA rulings affirm validity of marriages recognized by state laws, which impacts the legitimacy of such marriages in immigration matters.

VAWA Self-Petition Processes

  • Enacted to allow abused spouses and children of U.S. citizens to self-petition for immigrant classification through Form I-360.

  • The process applies to a range of abusive situations including physical, emotional, and psychological abuse within intimate relationships.

  • Derivatives can be included in VAWA petitions for permanent resident status under defined eligibility constraints.

Conclusion

  • This extensive legislative setup underlines the intricate regulatory landscape of U.S. immigration law based on family dynamics and evolving interpretations of personal relationships, including same-sex marriage and VAWA protections for victims of domestic violence.