Comment by:
Cassidy Cloninger

39 Campbell L. Rev. 413 (2017)

INTRODUCTION

During the second Republican (“GOP”) primary debate on September 16, 2015, Senator and Presidential Candidate Marco Rubio outlined his views on immigration reform, stating: “[America needs] to modernize our legal immigration system so you come to America on the basis of what you can contribute economically, not whether or not simply you have a relative living here.”1 The Senator’s comment also rings true with many other Americans.  Generally thought to be based on ability and achievement,2 for a great majority of immigrants the “American Dream” provides a chance to create a better life for their children and families.3  However, for many immigrant families, achieving the American Dream can quickly become a lost effort due to the negative effects of family separation and having to choose between country and family.4

With limited exceptions, America’s current immigration system annually accepts 675,000 permanent immigrants worldwide.5 Immigration to the United States is prioritized based upon the principles of reunifying families and “admitting immigrants with skills that are valuable to the U.S. economy, protecting refugees, and promoting diversity.”6Noticeably, the “[p]reference allocation for family-sponsored immigrants” is the first category of immigrant visas discussed in the Immigration and Naturalization Act (“INA”) Section 203.7This is important because family reunification has been, and should remain, at the heart of America’s immigration system.8 Family-based visas seek to accomplish the goal of reunification.  However, with visa opportunities available that hinder that policy, such as the “immigrant investor” visas (EB-5) and diversity lottery visas,9 it is hard to see how our current immigration system is advancing that goal.

Today, America’s immigration system allows for five specific types of immigration: (1) family-based immigration; (2) employment-based immigration; (3) diversity immigration; (4) refugee and asylee immigration; and (5) other forms of humanitarian relief.10 However, this Comment will discuss only family-based immigration, a single type of employment-based immigration (EB-5), and diversity immigration.

In 2015,11 the number of persons who obtained lawful permanent resident (“LPR”)12status via the family-sponsored preferences totaled 213,910; the number of persons who obtained LPR status via the employment-based preferences totaled 144,047; and the number of persons who obtained LPR status via the diversity lottery system totaled 47,934.13While these numbers may suggest the success of the family-sponsored LPR program, serious deficiencies remain.  Among those waiting for their application to become “current”14 in order to gain entry to the United States are 310,884 unmarried sons or daughters of United States citizens, 700,212 spouses and children or unmarried sons and daughters of current LPRs, 781,810 married sons or daughters of United States citizens, and 2,466,667 brothers and sisters of adult United States citizens.15 As of November 2016, many of these family members’ applications are backlogged from February 2015 and even as far as December 2003.16 Given these and other problems, immigration remains a hot-button issue, with many Americans contending the immigration system needs an upgrade.17

This Comment discusses the immigration system of the United States and the need to (1) eliminate the EB-5, employment-based visa category, and (2) dispose of the diversity lottery in order to limit the disparity of visa opportunities for family-based immigration applicants.  Part I of this Comment provides a brief history and a general explanation of America’s immigration system and how certain current visa systems operate.  Part I also includes more in-depth information on the family-based,   employment-based, and diversity visas.  Part II of this Comment provides an overview of the strengths and weaknesses of the employment-based and diversity-based visa programs, and why the number of family-sponsored visas should be increased.  Part III addresses the counterarguments to increasing family-sponsored visas, including concerns about the ability of family-sponsored immigrants to provide for themselves without government support and the opportunity for family-sponsored immigrants to change America’s culture.  Ultimately, this Comment concludes that while there are possible disadvantages to increasing the number of family-sponsored visas, the benefits greatly outweigh any costs associated with doing so.  As such, the United States should alter its immigration system by reallocating the EB-5 employment-based visas and all diversity lottery visas to the family-sponsored category to increase the number of visas granted to family members of LPRs and U.S. citizens each year.

       

Download the full article.