This is the first NBCLatino/NBC News story in a series of special reports to be rolled out from April 11-19, 2013 which explore the current immigration system and the lives of immigrants in the United States.
If there’s one thing that has remained constant during the debate around immigration it’s this: If undocumented immigrants want legal status, they have to get in the “back of the line.” Both President Obama and the members of the House and the Senate have advanced the idea of earned citizenship by telling the undocumented to get behind immigrants who have already gone through legal channels to immigrate to the U.S. But who exactly is on the immigration line? And just how long is it?
In reality, there is no one line that immigrants can get on.
“The bottom line really is that the line is nonexistent in the current system. The current system has categories for immigrants, family and employment, and puts a limit on the number of immigrants who can immigrate. It’s not working,” Annaluisa Padilla, immigration lawyer and secretary of the American Immigration Lawyers Association, says of the current system.
There are four main ways in which immigrants can become U.S. citizens:
- Employment: Employers can petition for needed workers and allow workers to apply for permanent resident status in the employment-based channel. The employment channel is further divided into subcategories such as skilled versus unskilled, or workers with advanced degrees. Number of visas per year: 140,000
- Family Ties: A legal, qualified family member in the United States can seek permission (a petition) to bring in certain foreign-born family members. U.S. citizens can petition for a green card for their spouses, parents, children, and siblings. Legal Permanent Residents or green card holders can petition for spouses and unmarried children. Number of visas per year: 226,000
- Refugee/Asylee Processing: Each year, the president in consultation with Congress sets a ceiling for the number of refugees who may be admitted to the country. After one year, refugees may apply to become lawful permanent residents. An immigrant does not qualify as a refugee or an asylee because of poverty or difficult economic conditions in their home country. Number of visas per year: 90,000 visas
- Diversity lottery: The annual Diversity Visa program makes 55,000 green cards available to persons from countries with low rates of immigration to the United States. Countries with high rates of immigration to the United States are not eligible. Applicants must have a high school education and two years of job experience. Number of visas per year: 55,000 visas
According to Marielena Hincapie, Executive Director of the National Immigration Law Center, the many lines have wait times that vary depending on the type of visas and their country of origin.
“Waiting periods vary by category, whether it’s a relative, a husband petitioning for his wife, a mother for her son over 21, married or unmarried. All of these different categories have different waiting periods. And depending on the country there could be an even longer wait,” Hincapie says.
One reason for discrepancies in wait times is the per-country cap which limits the amount of immigrants from any given country, despite the demand for visas. The Immigration and Nationality Act of 1965 changed the quota system so that each country from where immigrants come is only allowed to contribute 7 percent of the total permanent residents or green cards issued each year.
“The whole concept of country limits created the backlog that we have today,” Padilla explains.
The State Department says that there are an estimated 4.4 million people waiting for legal status. According to both the State Department and U.S. Citizenship and Immigration Services, that number is just a rough estimate. It doesn’t generally account for immigrants with unique situations such as non-immigrant visa holders who are applying for immigrant status. The estimate also may include people who are double counted because they fall under two categories, or may include those who are no longer in line because they died.
Still, the estimated numbers paint a bleak picture for immigrants who hope to gain legal status. Some of the most notoriously backlogged categories are the sibling preference category in the Phillipines, where people have been waiting for their priority date to be processed since 1998. For unmarried sons and daughters of permanent residents in Mexico, some may have been waiting for around 20 years.
Even with some wait times over decades long, Padilla says that some immigrants hoping for legal status may have to wait even longer because of bureaucratic processing times.
“The problem is that wait times don’t necessarily advance month by month. It all depends on the number of visas and the number of applications that are received on these categories. Another thing that’s not working about the system is that if a visa becomes available for a person who doesn’t use it, that visa is pretty much lost. So there’s no way of maintaining a proper flow,” Padilla says.
Although the Senate and House plans have yet to be released, Hincapie foresees that new applications will likely only be processed once the existing lines have been deal with.
“The legislation being considered would have two stages. The first would be that immigrants can apply for a provisional legal status and work authorization after paying fines, fees, back taxes, et cetera. But these individuals would be in a temporary status and only once the lines have been dealt with will they be able to apply for a green card,” Hincapie explains.
According to a recent brief by the Migration Policy Institute, it would take decades to clear the backlog if legislators expect immigrants to get in line behind existing applicants. The report says that in the hypothetical situation that no new visas are made available and the current conditions apply going forward, then it would take 19 years to clear the existing backlog in the family based category alone. The Institute recommends that the government must add additional visas in order for immigration reform to make a dent in the current backlog.
Visa demand was so high for the coveted skilled worker category that the USCIS had to stop accepting petitions for visas just five days after the application period opened, after receiving more than 124,000 petitions for 65,000 spots. Senators have proposed lifting some visa caps, such as raising the high-skilled visa cap to around 100,000. Another proposed idea was the creation of a “W Visa program” that would allow employers to petition for lesser-skilled foreign workers.
Still both Padilla and Hincapie think that legislators must do more than they are currently proposing in order to really solve the backlog.
“What needs to be done is a complete rework of the system. If we are going to fix the system, we need to step out of the box and get creative to make it work,” Padilla says. “Should we really still have all these categories in this day and age of immigration?”
For Hincapie, the system must take into account families and people who have been trying to get in line but have had no way of doing so.
“The current backlogs need to be aggressively adjudicated,” she argues. “The eleven million aspiring citizens have been waiting in the line — that’s called the broken immigration line. Nothing takes into account that they’ve been waiting in the line for Congress to act.”