Flaws in Family-Based Immigration Laws Causing Prolonged Separations

For many families living in poverty or conflict-ridden countries around the world the only hope of escape boils down to marrying off a daughter (and in some cases a son) to a U.S. citizen. Once the daughter (or son) immigrates to America via either marriage or fiancé visa, the door is opened to the rest of the family. However, this form of journey to America is often a very long, difficult and arduous undertaking.

Typically, the immigrant spouse has barely passed the age of 18 and is the eldest child of a very large family. To begin with, these types of marriages, although bona fide, are often riddled with problems and sometimes unreported abuse since the marriages are either arranged or the couple does not get to know each other well enough before getting married or engaged due to the geographical limitations.

Within 3 years after receiving his or her green card, the immigrant spouse is eligible for citizenship, which means that his or her parents are the first in line to immigrate to the U.S. since their priority dates are current. However, the rest of the siblings cannot accompany the parents. Per existing immigration laws, those members of the family, who are often very young, must stay behind until their priority dates become current through their now-U.S. citizen sibling (which takes more than 10 years), or once the parents immigrate to the United States, receive their green cards and file petitions for their children (which may take in excess of 5 years). At the same time, if their children reach the age of 21 while their parents' petition is pending, their priority dates slide down to a different category requiring them to wait even further while the other siblings who are under 21 can follow the rest of the family, once the priority date becomes current.

Accordingly, many parents are faced with an extremely difficult choice: to leave their young children behind with other relatives and immigrate to the United States in the hopes of having their children follow them at an uncertain future date; or to refuse an open ticket to America and stay behind with their children until their priority dates become current. Unfortunately, many parents have chosen the former option and are dealing with the consequences.

Although having a green card entitles the parents to go back and visit their children as many times as they would like for up to one year at a time, many of them cannot even afford to support their children let alone the travel expenses. (For purposes of maintaining their eligibility for citizenship, they will need to be present 2 ½ years plus one day after receiving their green card). This dilemma has been recognized by the White House and Congress in the past and a temporary remedy has been attempted:

The Legal Immigration Family Equity Act (the LIFE Act) and its amendments established a new non-immigrant category (V, or V-visa) within immigration law that allowed the spouse or child of a U.S. lawful permanent resident (LPR) to live and work in the United States in a non-immigrant category. The spouse or child could remain in the United States while they waited until they were able to apply for lawful permanent residence status (also known as adjusting status), or for an immigrant visa, instead of having to wait outside the United States as the law previously required. However, this opportunity is only available under the following circumstances and for the following beneficiaries:

  • Lawful permanent resident (LPR) petitioner must have filed the I-130 immigrant visa petition on or before December 21, 2000;
  • Priority date is at least three years previous;
  • Priority date is not current;
  • Applicant has not already had an immigrant visa interview or been scheduled for an interview;
  • Petition is not already at an embassy or consulate abroad; and,
  • Applicant is otherwise eligible as an immigrant.

The V-visa program that was created as a temporary solution to this problem had come as a blessing to many families caught is such circumstances. But unfortunately, as is apparent from the conditions outlined above, it was available only to beneficiaries of I-130s filed on or before December 21, 2000 and is currently obsolete for thousands of families.

The extension of this visa program has become necessary so as to expand its benefit to a larger section of legal permanent residents, who might otherwise take as long as six years to be reunited with their families. The good news is that a solution toward extension of the V-visa program is currently gaining momentum.

Authored by Bashir Ghazialam, criminal and immigration lawyer.