A Devastating Wait: Family Unity and the Immigration Backlogs

Transcription

1 A Devastating Wait: Family Unity and the Immigration Backlogs

2 Acknowledgements was produced by the Asian Pacific American Legal Center. Daniel Huang is the report s principal author. Special thanks to: Asian American Institute April Lewton Asian American Justice Center Tuyet Duong Karen Narasaki George C. Wu Asian Law Caucus Joren Lyons Asian Pacific American Legal Center Daniel K. Ichinose Lindsey Kawahara Stewart Kwoh Nam-Pho Nguyen Tammy Peng Adrienne Platts Sara Sadhwani Rebecca Shea My B. Trinh Karin Wang Mark Yoshida Catholic Charities of Los Angeles, Inc. Loc Nguyen Filipino American Service Group, Inc. Susan Dilkes Rhoda Francisco Law Office of Daniel Huang Daniel T. Huang Pilipino Workers Center Strela Cervas Aquilina Soriano South Asian Americans Leading Together Priya Murthy South Asian Network Shiu-Ming Cheer This report made possible with support from the 2008 Asian Pacific American Legal Center. All Rights Reserved. No part of this publication may be reproduced in any form by any means without attribution. Printed in the United States of America.

3 The Asian Pacific American Legal Center of Southern California (APALC) is the nation s largest legal organization serving the Asian and Pacific Islander (API) communities. Founded in 1983, APALC is a unique organization that combines traditional legal services with civil rights advocacy and leadership development. The mission of APALC is to advocate for civil rights, provide legal services and education and build coalitions to positively influence and impact Asian and Pacific Islanders and to create a more equitable and harmonious society. APALC is affiliated with the Asian American Justice Center (formerly known as NAPALC) in Washington, D.C. Contents 01 Introduction Background Family Unity in Immigration Law U.S. Immigration Law Before Current U.S. Immigration Law Key Terms in U.S. Immigration Law Benefits of Family-Based Immigration The Problem Defined Family Backlogs The Backlogs and Other Immigration Rules Adam Khan Pedro D. Alpay Impact on New Immigrants Sumathi Athluri Impact on the Elderly Francisco Villacrusis Impact on Women Jennifer Xu Impact on Asian Americans John Park Impact on Latinos Same-Sex Couples and Family Immigration A Greater Threat My D Proposed Solutions Increase in Family Visas Redefining Family Categories Relief for Special Categories Caps on Waiting Times Recapture of Unused Visas Increase of Per Country Limits Summary of Recommendations Endnotes

4 01 Introduction IN THE SPRING OF 2000, the plight of a young Cuban boy, six-year-old Elian Gonzalez, became the subject of heated debate in the United States. Elian had left Cuba months earlier, surviving a tragic crossing across the Florida Straits that claimed the lives of his mother and 10 others after the small boat they were in sank at sea. Elian s father had not been informed of the crossing attempt and, upon learning of his son s whereabouts, demanded his return to their family in Cuba. In Miami, however, several of Elian s distant relatives quickly took custody of Elian and refused to let the boy return home. Despite the historic animosity between the U.S. and Cuba, most Americans sided with Elian s father during the ensuing standoff. 1 The U.S. government also sided with Elian s father and, on April 22, 2000, seized Elian from the Miami home of his paternal great uncle in a well-publicized raid. By the end of June, Elian and his father were headed back to Cuba. The Elian Gonzalez case was a potent reminder of both our country s dedication to the concept of family unity and its importance to the American public. The principle of family unity to keep married couples, children, and siblings together is shared by nearly all societies and enshrined in many laws. U.S. family law, for instance, strongly prioritizes finding solutions to keep children with their parents. Federal and state disability laws allow adults time off from work and compensation to be with and care for an ailing parent or spouse. For the most part, our immigration laws also promote family unity by awarding the majority of U.S. immigrant visas to the husbands and wives, children and parents, and brothers and sisters of current U.S. residents so that families are not split apart. The principle of family unity has long been an important part of our immigration tradition, and even during the most restrictive years, U.S. immigration laws have allowed immigrants to bring in their family members. Immigration laws that promote family unity have benefited the U.S., providing social stability and economic prosperity in numerous ways. For instance, family-based networks have been shown to prevent a wide range of social and health problems, from asthma and drug abuse to teen pregnancy and gang violence. 2 And family-sponsored immigrants, particularly women, play a dynamic role in the U.S. economy as entrepreneurs of small and medium-sized businesses, an important driving force behind urban revitalization and job growth in every major metropolis in the U.S. 3 However, our efforts to keep families together have been seriously undermined by extremely long waits for family-based visas that force families apart for years. A backlog of visas experienced in many immigration categories, but especially for family members currently separates immigrants from spouses and their young children for over five years and separates elderly parents, adult children, and siblings for as many as 23 years. The waits affect millions of immigrants and U.S. citizens alike and create immense suffering as residents are forced to live many years without the companionship and support of their closest loved ones. 4 Asian Pacific American Legal Center

5 Other immigration rules often make matters worse by denying visits to family members, prolonging and exacerbating waits, or separating an immigrant from one family member after reuniting her with another. For instance, seniors may learn to their despair that a spouse s recent death has invalidated immigration applications for their children, forcing them to reapply and wait an additional eight to 15 years. In other cases, family members receive their visas after many years in the backlog, only to learn that their children can no longer immigrate with them because they recently turned 21 years old and must now apply separately as adults. The impact of the backlogs on families has been both powerful and disturbing. Newer immigrants must live without the love and support of their spouses, children grow up without one or both parents for years, and the elderly live without the support of family during a period when they need them most. The backlogs also disproportionately impact particular populations, such as Asian Americans, Latinos, and women. Asian Americans and Latinos in the U.S., with higher levels of foreign-born, 4 are much more likely to be separated from family by the backlogs. Women, often exploited and prevented from seeking employment, are more likely to be waiting in the backlogs because other options for immigration are not open to them. 5 And the lengthy waits for immigrant families contribute to the problem of illegal immigration. For many of the approximately 12 million unauthorized immigrants that currently live in the U.S., remaining close to family members is the primary reason for arriving without documentation or overstaying a visa. 6 Immigrants must make difficult decisions, such as the mother who, with child in hand, visits her permanent resident husband in the U.S. on a tourist visa and then chooses to remain with him rather than return to the Philippines where raising their child without a father is an unacceptable option. Like so many other long-term residents, she will live without rights and often without stability, facing poor prospects for advancement and fearing deportation on a daily basis. A DEVASTATING WAIT: FAMILY UNITY AND THE IMMIGRATION BACKLOGS seeks to add value to the ongoing debate on immigration reform. Any effective immigration reform must resolve the problem of serious backlogs in our immigration system, especially for family-based immigrants. A Devastating Wait attempts to provide the reader with a better understanding of the family backlog problem and its impact. It details the economic and social benefits of family-based immigration and presents real stories of immigrants impacted by the family backlogs. The stories, collected through firsthand interviews and media articles by the Asian Pacific American Legal Center and our partner organizations, highlight painful and sadly common tales of separation shared by millions of families of U.S. citizens, permanent residents, and wouldbe immigrants. Most importantly, A Devastating Wait offers possible solutions to the problem of the backlogs and our recommendations on solving this tremendously harmful and devastating problem. Asian Pacific American Legal Center 5

6 02 Background Family Unity in Immigration Law U.S. Immigration Law Before 1965 THE PRINCIPLE OF FAMILY UNITY has long been a part of our immigration tradition in the United States. For centuries before the establishment of federal immigration laws, entire families would immigrate to the U.S. from Europe together or be reunited after the arrival of the head of a household. The U.S. government imposed few, if any, restrictions on entrance and welcomed immigrants. In the late 1800s and early 1900s, Congress began to restrict immigration in an ugly and discriminatory manner, but U.S. courts made exceptions to these laws for the sake of family unity. For instance, family unity arguments successfully challenged racist Chinese exclusion laws during this period, which otherwise banned any Chinese from entering the U.S, creating rare exemptions for the wives and children of Chinese merchants and U.S. citizens. 7 Congress took note of the court challenges and in 1917, preemptively included exemptions for family members while designing discriminatory literacy laws aimed at limiting the immigration of Southern and Eastern Europeans. 8 In the 1920s, the U.S. government laid down the foundation for our current framework of family unity. With the Quota Acts of 1921 and 1924, Congress again enacted racist and discriminatory immigration laws, but also made considerations for family unity. The Quota Acts imposed numerical limits on visas and gave the majority of visas to white immigrants from Northern and Western Europe. Asians were excluded entirely, and Congress severely limited the immigration of Southern and Eastern Europeans. But at the same time, Congress created rules within the discriminatory new quotas that sharply mirrored our current framework for immigrant family unity. Wives and minor children were exempted from the quotas, and a preference system was established within the quotas for the close relatives of U.S. citizens, including parents, siblings, and adult children. 9 Current U.S. Immigration Law In 1965, at the height of the civil rights movement, Congress established our current immigration system. Seeking to abolish the racism of prior law, the Immigration Act of 1965 turned family unity into the central pillar of U.S. immigration law and replaced the Quota Acts with a new system allocating visas primarily on family sponsorship and employment preferences. 10 Today, while there are other routes through which an immigrant may gain residency, family-based immigration receives the majority of permanent resident visas in our system. 11 Family-based immigrants can be divided into two types immediate relatives and the family preference categories. In U.S. immigration law, immediate relatives, who typically account for over two-thirds of all family-based immigrants, include the spouse, minor children (unmarried and under age 21), and parents of a U.S. citizen. Siblings and older children do not qualify as immediate relatives in U.S. immigration law. 6 Asian Pacific American Legal Center

7 Key Terms in U.S. Immigration Law: Visa A stamp or document in your passport that allows you to travel to the U.S. There are two types of visas immigrant (for those who have been found eligible to live and work in the U.S. permanently) and nonimmigrant (for those who are found eligible to stay in the U.S. for a limited period of time and for a specific reason, e.g. tourist visa, student visa). Permanent Resident or Legal Permanent Resident (LPR) A non-u.s. citizen who has been given permission to live and work permanently in the U.S. The U.S. government issues a green card as proof of permanent residency, so permanent resident and green card holder refer to the same thing. Immediate Relative The spouse of a U.S. citizen, an unmarried child under 21 of a U.S. citizen, and a parent of a U.S. citizen who is over 21. Family Preference Any of the four family-based immigration categories: 1) the unmarried adult children of a U.S. citizen, 2) the married adult children of a U.S. citizen, 3) the siblings of a U.S. citizen who is over 21, and 4) the spouse and unmarried children of a legal permanent resident. Derivative The spouse and unmarried children under 21 of an immigrant or nonimmigrant visa holder. Diversity Visa An immigrant visa lottery program held for persons born in countries that do not typically send many immigrants to the U.S. Refugee/Asylee A person who receives permission to enter or stay in the U.S. based on a fear of persecution in his/her home country. Refugee refers to a person who is outside of the U.S. when receiving permission, while asylee refers to a person who is already inside the U.S. Instead, siblings and children aged 21 or older fall into the family preference categories of U.S. immigration law, along with the spouse and minor children of legal permanent residents (LPRs). These are the only family members outside of immediate relatives allowed to immigrate to the U.S. The family preferences are categorized as follows: Chart 1: Family Preference Categories in U.S. Immigration Category FB-1 FB-2A FB-2B FB-3 FB-4 Type of Relationship Unmarried child, aged 21 or older, of a U.S. citizen Spouse and unmarried children under 21 of an LPR Unmarried child, aged 21 or older, of an LPR Married child, aged 21 or older, of a U.S. citizen Brothers and sisters of a U.S. citizen Perhaps the most important distinction between immediate relatives and family preferences in U.S. immigration law is that immediate relatives are not subject to a quota a fixed ceiling or cap on the number admitted limiting their immigration, while each family preference category faces different quotas that have not been updated in nearly two decades. Asian Pacific American Legal Center 7

8 Continued: Background Family Unity in Immigration Law The overall annual quota on immigrants who fall in the family preference categories is 226,000 and is actually a floor a minimum number admitted within another quota for all family-sponsored immigrants, including immediate relatives. The floor goes into effect and acts as a cap when the higher quota is full, an inevitable occurrence each year in recent decades. These quotas cause serious problems for U.S. residents and their family members in the family preference categories because each year, the quota of visas available does not meet the need for those visas. New applicants are placed in line for the next available visa, but today the waiting time in that line can be many decades. U.S. residents and immigrants waiting for those visas are separated from their family members for prolonged and devastating periods of time, during which they may die, divorce, or otherwise suffer from the loss of support and intimacy created by the separation. Benefits of Family-Based Immigration For U.S. residents who are able to reunite with family members, family unification brings multiple benefits to them and to the country as a whole. Immigrant family members, as in other families, support and sustain each other and provide security and shelter in times of need. They bolster the success and integration of their U.S.-born and immigrant family members by taking care of young children and buying homes together. Such support is particularly important for any individual who is learning the language, systems and processes of a new country a period that is difficult and stressful for most immigrants. Indeed, immigrant families have proven to be vital emotional, psychological, and cultural resources for entire communities, not only family members. Public health and psychology research demonstrate that family networks help prevent a wide range of health and social problems in communities, from substance abuse and teen pregnancy to suicide and gang violence. 12 One study of Latinos in Chicago even showed that those living in neighborhoods with high densities of foreign-born Hispanics and their immediate families had significantly lower rates of asthma and other breathing problems than those living in communities with a low percentage of foreign-born residents and with minimal family support. 13 Asian Pacific American Legal Center

9 Economically, family-based immigration has had a real positive impact, especially for long-term economic growth. Again, research has shown that because family-based immigrants tend to invest highly in additional schooling and training, they are more adaptable to changing market and labor conditions and are less likely to compete with the native-born for jobs. In fact, family-based immigrants have a statistically positive effect on the earnings and employment of U.S.-born whites and blacks. 14 Scholarly research also indicates that a family-based admissions system fosters innovation and the development of new businesses that would not otherwise exist. For this reason, family-based immigrants, particularly women, have been credited for playing a dynamic role in the U.S. economy as entrepreneurs of small and medium-sized businesses that are a driving force behind inner-city revitalization and job growth in nearly every major metropolis. 15 Family-based immigration is essential to this entrepreneurship research has even shown a positive correlation between siblings admission and immigrant entrepreneurship. 16 Family unity also provides stability for workers. Long-term family separation causes undue stress on workers, and immigrant workers without families are more prone to get sick, get sick faster, and not seek or obtain the healthcare they need. 17 Finally, family unity is economically sound policy for the U.S. because it keeps important dollars in the country. With family unity, immigrants many of whom are the bread winners of their families no longer need to send money home to support their spouse, children, siblings, and parents. Each year billions of dollars are sent overseas in remittances to family members in an immigrant s home country. 18 Family unity keeps those dollars in the U.S. where U.S. residents and immigrants use them to purchase homes and consumer goods and strengthen our economy. Asian Pacific American Legal Center 9

10 03 The Problem Defined Family Backlogs IN 2001, MING LEE of Rowland Heights, California filed a petition with U.S. immigration authorities for his sister to join him and his 72-year-old mother in the United States. His mother wished to be reunited with her daughter after moving to the U.S. from China, but in 2008, seven years after Ming filed the petition, they still faced four more years of family separation. Why does Ming Lee have to wait so long for his sister s visa? Unfortunately, despite a continued emphasis on family unification in U.S. immigration law, families immigrating to the U.S. still face considerable challenges to staying together and obtaining visas for spouses, children, and siblings. Families residing in the U.S. may apply for their family members overseas, but if the immigrating family member falls within a family preference category, the family member s ability to immigrate is affected by the U.S. system of quotas on familybased visas. Each year, the quota of visas available to immigrants in each of the family preference categories does not meet the need for these visas. The quotas operate on a first come, first served basis, and as the number of family members annually applying through the family preference categories regularly exceeds the annual quotas, new applicants are placed in line for the next available visa. In recent decades, this line has grown longer and longer as more and more family members are sponsored but the number of visas available each year remains static. Over many years, the quotas have created an immense backlog of spouses, children, and siblings of U.S. citizens and legal permanent residents (LPRs) waiting to reunite with their sponsoring family members in the U.S. Today, expected wait times for family-sponsored immigrants have extended, in many cases, to decades. For instance, the current wait time for spouses and minor children of LPRs is five years, and the wait time for children of U.S. citizens aged 21 or older is even longer six years for those still single and eight years for those who have married. Family members and their derivatives (spouse or minor child) in the category of brothers and sisters of U.S. citizens must currently wait between ten and eleven years if they apply today. And family members from China, India, Mexico, and the Philippines face even longer waiting periods because of low caps per country, regardless of that country s size or ties to the U.S. A child of a U.S. citizen over 21 years old and from Mexico currently must wait over fifteen years. Brothers and sisters of U.S. citizens from the Philippines must wait nearly 23 years. 10 Asian Pacific American Legal Center

11 Chart 2: Expected Family Preference Visa Wait Times (in Years) as of December 2007 Category* General China India Mexico Philippines FB-1 6 Years ½ 15 FB-2A ½ 5 FB-2B ½ 11 FB ½ 16 ½ FB-4 10 ½ ½ ½ * See page 7 Current U.S. Immigration Law for an explanation of the categories The expected wait times for family members from China, India, Mexico, and the Philippines in each family preference category are indicated in the table above. 19 An estimated four to five million spouses, children, and siblings of U.S. citizens and green card residents currently wait in enormous backlogs for visas that will reunite them with their loved ones. 20 The lengthy waiting periods have created havoc for millions of immigrant families whose shared lives are placed on hold for years, and sometimes decades. Asian Pacific American Legal Center 11

12 The Backlogs and Other Immigration Rules Other immigration rules often exacerbate the plight of families in the immigration backlogs. In some cases, the long waits trigger rules that invalidate an individual s application or extend waits for many more years. In other cases, restrictions designed to prevent immigration abuse instead keep family members from traveling to see each other or unnecessarily separate parents from young children. For instance, many rules can interact with the backlogs to invalidate a longstanding application. One such rule involves aging out, or turning 21 years old. When minor children of LPRs age out of their immigration category, they must wait an additional four to 10 years before reuniting with their parents (assuming they move from the FB-2A to FB-2B category). Worse, many children of family-based immigration applicants originally qualify to immigrate with their parents as derivatives (spouse or minor child) of the primary applicant. However, after waiting many years, these children age out of their ability to immigrate with their parents, sometimes turning 21 only months before their families receive permission to immigrate. These children typically face at least an additional decade-long wait before being able to reunite with their families in the U.S. Marriage can also invalidate a longstanding application or add years of waiting to it. For children over 21 years old of LPRs, exchanging marriage vows would nullify their immigration applications. For children over 21 years old of U.S. citizens, marriage typically adds several years to their waiting times. Sometimes, a family member waits in the backlogs for so long that their petitioner dies before the wait is over. When this happens, instead of recognizing the sad nature of the situation, U.S. immigration law nullifies the family member s immigration application. Too often, the petitioner s spouse (the other parent of the applicant) survives the petitioner, is still separated from his or her children, and now must reapply and wait many additional years or decades. This tragic scenario actually takes place very frequently both because the backlogs are so long and because filing an immigration application costs hundreds to thousands of dollars for each petitioner, making separate petitions from each parent infeasible for many elderly citizens with limited incomes. 12 Asian Pacific American Legal Center

13 Adam Khan* *Name changed to protect identity Adam Khan s youngest daughter was eleven years old in 1980 when their family decided to move from Pakistan to the United States, where they knew a better life awaited them. That year, Adam s brother, a U.S. citizen, filed a petition for Adam and his wife and three young daughters to immigrate to the United States, but they soon learned that the siblings category of the U.S. immigration system had a large backlog of applicants that would require them to wait many years. Disappointed, they nonetheless prepared themselves for the move, which seemed to be inevitable with some prerequisite patience. Ten years later, Adam and his wife received their visas to immigrate to the United States. They looked forward to rejoining their eldest two daughters, who had both married U.S. citizens. But just a few months earlier, their youngest daughter had turned 21 the dreaded cutoff age for derivative beneficiaries of immigration applicants. Based on this rule, she was denied a visa to accompany her parents to the United States. With difficulty, the family decided to separate temporarily. Adam and his wife moved to the United States so they would not lose their long-awaited green cards, and their daughter remained in Pakistan, where she would stay until she received a visa under a new application as the adult child of a U.S. green card holder. From the United States, Adam filed the new application and again they were informed the process would take many years. To keep the family intact and ease their daughter s loneliness, Adam s wife traveled back and forth between the United States and Pakistan every year as they waited for many years. Their daughter was barred from visiting them in the United States during these years because of her impending application for immigration yet another archaic rule in the U.S. law books. Adam and his wife were able to celebrate a joyous occasion during this period as their daughter fell in love with a man and soon thereafter got married. But when the date came for their daughter to finally receive her visa, they discovered that her application had been invalidated because she had gotten married. To reunite the family, Adam would have to apply again for his daughter as a U.S. citizen and wait many more years in the immigration backlogs. In 2008, Adam s daughter finally received her visa, 28 years after her parents first told her she could look forward to a future in the United States. Like so many others that come to us, the system simply did not work for them, said Shiu-Ming Cheer of the Los Angeles-based South Asian Network, who provided information and assistance to the Khans. The existing visa system does not fit the needs and realities of people who are waiting to be reunited with their families. Asian Pacific American Legal Center 13

14 Other immigration rules prevent travel or separate families unnecessarily. For instance, family members are regularly denied tourist and other temporary visas to the U.S. if they have a pending family-based immigrant application because government officials are afraid the family members will stay in the U.S. after their visas expire. If their petitioner is an LPR, he or she also may face travel restrictions because LPRs must live predominantly in the U.S. to keep their permanent resident status. In combination, these rules often curtail a family s ability to visit each other while waiting in the interminable backlogs. Another absurd rule denies visas to the spouses and minor children of immediate relative applicants. In most other immigration categories, spouses and minor children can receive visas as derivatives, but in this case, families of immediate relatives are denied derivative benefits and end up separated or undocumented when there is no other recourse for them. Finally, citizenship rules can exacerbate backlogs by adding many years to the waiting time for many families. In general, LPRs are required to wait five years before applying for U.S. citizenship. The citizenship application process often takes an additional nine months to well over a year. For LPRs separated from spouses or minor children, the wait time for citizenship is as long as the wait time in the backlogs. For immigrants separated from adult children or siblings, their wait in the backlogs usually comes on top of the six years they have waited to become a citizen. 14 Asian Pacific American Legal Center

15 Pedro D. Alpay When Pedro D. Alpay heard in 1990 that the United States would finally fulfill its broken promise of U.S. citizenship to Filipino World War II veterans, he immediately began dreaming of a better life in the United States for himself and his family. Pedro, a WWII veteran who fought against the Japanese with a guerilla unit in the mountains of Luzon, proudly became a U.S. citizen in March 1992 and began his new life in California with his wife at the elderly age of 70. Within months, Pedro and his wife began the task of bringing their immediate family to the United States, filing immigration applications for their seven children, who were unable to immigrate with their parents because they were all over the age of 21. Pedro soon learned that the enormous backlog of immigration applications meant long wait times for Filipino green card holders and naturalized citizens alike. His heart sank when he heard that his children would not receive their visas for at least fifteen years. I waited almost half a century to become a U.S. citizen, Pedro said. I did not think I would have to wait again for my family to join us. Although at times sad and lonely, Pedro and his wife were determined to bring their family to the United States and stayed in their adopted country, praying regularly for an early reunion with their children. As their children were unable to receive even tourist visas during this time, the elderly couple bore the burden of travel to visit their family, which they could only do once every few years. Fifteen years later, their youngest son, Manuelito, received his visa and joined his parents in Los Angeles. A civil engineer in the Philippines, Manuelito is now 46 years old and has remained single due to the longer wait times facing married children. It was painful not seeing my parents for so many years and not having the chance to take care of them, says Manuelito. The time remaining now is too short. Pedro s other children remain in the Philippines. Most of them have married and will not receive their visas for another two to four years. One daughter, Evangeline, is a single mother whose own daughter was ten years old when Pedro petitioned for them but is now over 21. The family faces a dilemma does Evangeline stay in the Philippines and lose the green card and opportunities her parents sacrificed so much for and the ability to be with her parents in their twilight years? Or does she move to the United States to be with her parents but face a twenty year wait before her own daughter can receive a visa? We have seen so many families in their situation, said Aquilina Soriano of the Pilipino Workers Center in Los Angeles, who is working with the Alpays to bring their family to the U.S. It is often heartbreaking, and these elders should be able to be with their families at this golden age in their lives, especially someone like Pedro who fought for America. Asian Pacific American Legal Center 15

16 Impact on New Immigrants For newer immigrants, many of whom have recently received permanent resident (LPR) status, the backlogs can be particularly devastating. The wait time for spouses and minor children of LPRs is currently five years. Most families facing the five year wait are young families, recently married or with young children. 21 The wait separates husbands from wives and young children from parents. The consequences of separation for these young families are very serious. Marriages fall apart as couples must live separately for many years in a long-distance relationship. Children spend a significant portion of their youth growing up without one of their parents. Breadwinners are overextended trying to provide for two households. And other immigration rules exacerbate the family s separation. During the long wait, the spouse and children are prohibited from entering the U.S. for a visit, but at the same time, the LPR husband or wife must reside predominantly in the U.S. or risk losing permanent resident status. Families are essentially forced to stay apart for most of the five years they must wait for available visas. U.S. citizenship could speed up the process of reunification since spouses and minor children of U.S. citizens face no backlog. However, in the U.S., LPRs must also wait five years before applying for citizenship. Other countries such as Australia and Canada allow permanent residents to apply for citizenship more quickly Asian Pacific American Legal Center

17 Sumathi Athluri Excerpt from Families Pay Price of Faulty Policies, April 12, 2006 by Jeff Jacoby, Boston Globe columnist: HEN SUMATHI ATHLURI Wmet the man she was destined to marry, it was love at first sight. She sensed at once that Jeevan Kumar, a young physician working on a World Health Organization project to eradicate polio in India, was someone special. And the more she learned about his lifestyle and values, she was telling me the other day by phone from Salem, where she now lives, the more I felt he was the man I was looking for. Jeevan was equally taken with Sumathi, a software engineer from Hyderabad who had moved to the United States on an H-1B work visa in 1999 and had become a legal permanent resident the holder of a green card in February The couple was married in India in August 2002, and for the first three months of their marriage they were virtually inseparable. But green-card holders are not permitted to remain abroad indefinitely, and when the time came for Sumathi to return to the United States, she was a wreck. It was so painful to leave him, she says. I was crying in the plane all the way to the US. Hoping to be quickly reunited with her husband, Sumathi filed a Form I-130, an application for an immigrant visa that would allow Jeevan to enter the United States. That was when she ran headlong into what has been called the most antifamily, anti-marriage, anti-immigrant aspect of American law: the prolonged and pointless separation of legal permanent residents from their spouses and children. Sumathi s I-130 application for Jeevan was submitted more than three years ago; unless the law changes, it is likely to take at least two more years before his immigrant visa is finally approved. In the meantime, he is barred from entering the United States to visit his wife, even briefly. Because Sumathi has a green card because she is here lawfully and will soon be eligible for US citizenship her husband cannot get even a tourist visa to come see her. Asian Pacific American Legal Center 17

18 Impact on the Elderly For the elderly, the family backlogs affect aging parents who are sponsoring their children to live with them in the U.S. The wait time for U.S. citizen parents sponsoring their children aged 21 or older is long six years for those with children who are still single and eight years for those with children who have married. For parents with children in Mexico or the Philippines, the wait time is much longer 15 to 17 years. Again, this wait often comes on top of the five years an elderly immigrant must wait after receiving his or her green card before applying to become a U.S. citizen. For the elderly, the backlogs translate into years of pain as they wait for their children to arrive to help take care of them or provide relief from the loneliness that often accompanies old age. Many must decide between living with their children and greater private access to better medical care in the U.S an important consideration for the elderly. Some have come to live with one child in the U.S. but feel emotionally distressed that other children have been left behind. Thousands of elderly Filipino World War II veterans who only received U.S. citizenship in the 1990s are torn between returning to the Philippines to be with their children and their allegiance to a country they have served and loved. Regardless of the individual situation, many elderly citizens do not live long enough to be reunited with their children in the U.S. Despite years of contribution and sacrifice they may have given to the country, the backlogs deprive these elderly immigrants of the happiness and support they deserve in their twilight years. 18 Asian Pacific American Legal Center

19 Francisco Villacrusis Francisco Villacrusis came to the United States from the Philippines in the late 1980s with his wife, but their son, Cielito, and daughter, Ligaya, both stayed behind in the Philippines because they were over the age of 21 and thus too old to immigrate on their parents visas. In 1994, Francisco and his wife began to work on their family s reunification, applying for their son and daughter s visas under his wife s name. They were appalled to learn that their children would not be able to come to the United States for 15 years due to the enormous backlog of applications from the Philippines. In 1997, Francisco s wife passed away. Mourning his wife s death, Francisco never imagined that U.S. immigration authorities would nullify his children s visa applications because she had passed away. But in 2003, Francisco learned that Cielito and Ligaya s applications, which they had already waited nearly ten years for, had been nullified. In September 2005, with the assistance of the Asian Law Caucus in San Francisco, Francisco asked U.S. authorities to reinstate his wife s petitions for his son and daughter on humanitarian grounds. With his serious health condition, Francisco argued that Ligaya, a nurse, and Cielito, a physical therapist, could provide skilled care and emotional support to their father if allowed to come to the United States. Despite the circumstances, his request was summarily denied. Francisco, a U.S. citizen, remains separated and without the care and support of his children today. If he lives, he will have to wait until 2019 before his son and daughter receive their visas and longer if either gets married. He will have waited 25 years since he and his wife first applied for their children to join them in the United States. I do not believe I will live long enough, Francisco says. I miss my children very much. The news hurt Francisco immensely. Francisco was already in his 70s, a widower, and in poor health. Hospitalized in 2005, Francisco suffered from coronary artery disease, hypertension, and high cholesterol. And he was lonely. Asian Pacific American Legal Center 19

20 Impact on Women The family backlogs disproportionately hurt women, who are more likely to wait in the backlogs than men. Women are both overrepresented among family-based immigrants and underrepresented among employment-based immigrants, making them much more likely than men to apply for their green cards through family-based immigration and thus to get stuck in the backlogs. A Department of Homeland Security examination of fiscal year 2004, for instance, showed women using 58% of all familysponsored visas and 54% of the family preference visas. 23 In contrast, women were the principal visa holders of a paltry 28% of employment-based immigrant visas, 24 and they were the recipients of a minority of all diversity 25 and refugee/ asylum visas. 26 Chart 3: Allocation of Visas by Gender in Fiscal Year 2004 Category Male Female Family-Based 42.1% 57.9% Employment-Based 72.2% 27.7% Diversity 54.7% 45.3% Refugee/Asylum 50.6% 49.4% Put another way, 69% of all female immigrants received their permanent residency through the family-based system, compared to 50.6% of all male immigrants. Women were 38% more likely to obtain their green cards through a family-based visa than men. 27 Family-based immigration benefits women who, more than men, are often denied access to resources and education and face social constraints both in their home countries and the U.S. 28 The backlogs are a serious problem for women, and cutting back on family-based immigration options would likely harm women more than men. 20 Asian Pacific American Legal Center

21 Jennifer Xu Jennifer Xu came to the United States in 1996 from a humble background in rural China. She was an ordinary worker, she explains, and a single mother to one daughter who was her only family. She had little money and came to the United States at the age of 52 hoping for a better life. But she had few expectations in the land of promise and opportunity other than to be able to bring her daughter over as quickly as possible so they could start their lives together in their new country. Jennifer applied immediately for her daughter s visa in 1996, but Jennifer and her daughter had few resources to tell them how long they would have to wait. Unable to afford a computer or even a refrigerator, Jennifer also did not have access to an attorney, who might have been able to warn her that because her daughter was over 21 years old, they faced a wait of over a decade for her daughter s visa. Twelve years later, her daughter finally received her visa after a decade of uncertainty and instability in China. Without knowledge of how long she would have to wait, she was unable to start a family or focus her energies properly on a career. In anticipation of her new life in the United States, she had focused all her energy on studying English instead. Now 43, she is happy to be reunited with her mother but bitter at having spent many important years from young adulthood to middle age waiting. How many decades do you have in a lifetime and how many decades do you have while you re young? asked her mother rhetorically. Despite her outgoing and cheery personality, Jennifer also expresses bitterness. The wait was mental torture, she says, and the separation placed great stress on their relationship. The immigration laws are inhumane, Jennifer says from her home in Los Angeles. Why do they make us wait? Our families are so important to us and our children are our children forever. Asian Pacific American Legal Center 21

22 Impact on Asian Americans Asian Americans and their family members waiting abroad are more likely than other groups to be caught in the backlogs waiting for family unification. With a percentage of foreign-born greater than any other major ethnic group (due to the exclusion of Asians to the U.S. until 1965), Asian Americans are more likely to have close family members remaining overseas. Asian Americans thus rely heavily upon family-sponsored immigration. Indeed, the majority of Asian immigrants come to the U.S. through family immigration. In 2006, for instance, 63% of Asian immigrants came through family sponsorship, 29 and in the fiveyear period from , over one million Asian American family members received their green cards through family-based immigration. 30 Although Asian Americans comprise only 4-5% of the U.S. population, 31 they sponsor nearly one-third of all familybased immigrants. 32 Asian Americans also use certain family preference categories married adult children of U.S. citizens and siblings of U.S. citizens more than other groups. In 2007, for instance, Asian American families used 64% of all visas issued by the U.S. State Department to adult married children of U.S. citizens and 75% of all visas issued to siblings of U.S. citizens. 33 In that same year, Asian American families also used almost half of all the visas issued to parents in the immediate relatives category. 34 As a result, a disproportionate number of Asian Americans have family members waiting in the family immigration backlogs. Nearly half of the applicants waiting in the backlogs are the spouses, children, and siblings of Asian Americans. 35 Of the one million Asian American family members who received their green cards from , almost 40% of them received their green cards through the family preference categories after waiting many years in the backlogs Asian Pacific American Legal Center

23 John Park* *Name changed to protect identity John Park immigrated to the United States with his family when he was only ten years old. His father, who had spent some time in the United States before and possessed an MBA degree, was invited to work in southern California by a corporation that sponsored his H-1 employment visa. John and his mother came along on the accompanying H-4 spouse and child visas. John s two older sisters had been born in the United States and did not require visas as they were birthright U.S. citizens. John had big dreams he wanted to attend the Massachusetts Institute of Technology and become a star in the computer industry so he worked hard at school, performing well even during the early years when he could hardly speak English. By his senior year of high school, John was a straight-a student with a 4.55 grade point average, ranked first in a class of 510 students. A well-liked and mature teenager, John flourished as he pursued his American dream and prepared to go to college. However, John soon received frightening news. His H-4 visa was about to expire, and unlike his parents, John could not immediately receive a green card through his sisters sponsorship because the backlogged sibling category had an eleven year wait for a visa. John also could not receive a green card through his parents application because a immigration rule denied visas to the spouses and children of immediate relative applicants. John went to consult with an immigration attorney, but the attorney did not have good news for him. If John left the United States and returned to Korea, a country he hardly knew anymore, he would be alone and separated from his family for decades. His parents could petition for him as the minor child of legal permanent residents (LPR), but a backlog in that category would require a wait of over five years, and John would turn 21 years old and age out of the category by then. He would also age out before his parents could become U.S. citizens and sponsor him in the immediate relative category. Once he aged out, the wait for children over 21 of U.S. citizens or LPRs would take an additional six to nine years. At the age of 17, John became an undocumented immigrant at the top of his class, but unsure of his college prospects for the upcoming fall. Without financial aid, many of the best universities were now out of reach. Without legal status, John was not likely to find gainful employment in the future. In March 2007, John wrote an to nearly 200 individuals in Los Angeles describing his plight. I feel as though all the hard work I put in throughout high school will come to nothing, since I currently do not have a path to legal residence in the United States. Never one to let despair turn to paralysis, he then asked the recipients for their support of the DREAM Act, a legalization bill for undocumented students. If the DREAM Act were to be enacted, students in situations like mine would benefit tremendously, he wrote. Just one phone call to your representatives in Congress could make a difference in the lives of students like me. Asian Pacific American Legal Center 23

24 Impact on Latinos Latinos are disproportionately stuck waiting for their family members in the immigration backlogs. With a high percentage of foreign born and the greatest overall numbers of foreign born in this country, 37 Latinos are more likely to have close family members remaining overseas. As a result, although Latinos comprise only 14% of the U.S. population, they sponsor almost 40% of all family-based immigrants. 38 For instance, Latin American and Caribbean countries comprised half of the nations sending the most family-based immigrants to the U.S. in Mexico, in particular, heavily relied on family sponsorship, with 15% of all immediate relatives and nearly 30% of family preference immigrants arriving from that country. Other Latin American and Spanishspeaking Caribbean countries sending large numbers of familybased immigrants included the Dominican Republic, El Salvador, Guyana, Guatemala, and Colombia. 39 Latinos also use certain family preference categories unmarried adult children of U.S. citizens and spouses and children of LPRs more than other groups. Latin American and Caribbean countries dominate the unmarried adult children of U.S. citizens and LPRs categories. 40 Latinos from Mexico sponsor over half of the spouses and minor children of LPRs the one family preference category exempt from per country limits in any given year. 41 As a result, Latinos face some of the longest waits in the world and are forced to make tremendous sacrifices. With so many family members overseas especially spouses and children Latinos suffer disproportionately from the immigration backlogs and its impact on their families and community. 24 Asian Pacific American Legal Center

25 Same-Sex Couples and Family Immigration While many groups face enormous obstacles with the backlogs for family-sponsored immigrants, one group has seen its families shut out entirely. Same-sex couples and their children have no standing in U.S. immigration law, and as a result many committed bi-national couples in the U.S. where one partner is a U.S. citizen or permanent resident and their families are forced to separate or live in constant fear of separation. According to the 2000 U.S. Census, an estimated 40,000 such couples currently live together in the U.S. 42 Others have already been separated or live together outside the U.S. For these couples, the challenge to obtaining immigration benefits begins with marriage discrimination. Immigration benefits for oppositesex couples are based on marriage, but in most of the U.S. and elsewhere, same-sex couples are unable to get married. Marriage discrimination against same-sex couples is widespread, and many states and several countries have gone so far as to enact bans on same-sex marriage in recent years. As of June 2008, only two states, California and Massachusetts, and six countries worldwide Belgium, Canada, the Netherlands, Norway, South Africa, and Spain allow samesex couples to get married. 43 Even when same-sex couples are able to get married, however, the U.S. still denies them spousal immigration benefits. In 1996, Congress enacted the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages for any purpose, including immigration. Despite making a lifelong commitment and often raising children together, same-sex spouses are unable to obtain an immigrant visa or green card as the husband or wife of a U.S. citizen. They are unable to obtain derivative benefits as the spouse of a temporary worker or other visa holder. With few alternatives, many same-sex couples have been forced to split apart or move their families overseas. Asian American gay and lesbian couples are particularly likely to meet this fate because of the high rate of foreignborn in the Asian American community and the large percentage of Asian American same-sex households raising children. 44 To end this unfair practice, the Asian Pacific American Legal Center supports two key changes to U.S. federal and immigration law proposed by human rights advocates. First, Congress should pass the Uniting American Families Act (UAFA), a bill that would allow U.S. citizens and permanent residents to sponsor their same-sex partners for immigration to the U.S. By adding the term permanent partner to sections of U.S. immigration law where spouse now appears, UAFA would provide an immediate fix for many bi-national same-sex couples who intend to make a lifelong commitment to each other. Second, Congress must repeal DOMA, an obvious and necessary step to ending federal discrimination against gay and lesbian couples. The repeal of DOMA would allow married same-sex couples to sponsor their spouses through established immigration channels and receive equal treatment for their families in U.S. immigration and federal law. 45 Asian Pacific American Legal Center 25

26 04 A Greater Threat In May 2007, Toan P. of Garden Grove, California, a father of two and immigrant from Vietnam, learned that the Bush administration had submitted a proposal to invalidate his July 2005 application for his daughter. Appalled and concerned, Toan wrote to his members of Congress. My wife and I are reaching a late stage in our lives and need to be with our children, Toan said. Not only do we miss our daughter, but we also need her to help take care of us. This [bill] is something that would devastate our family and leave my daughter facing a very difficult future. Toan was not mistaken in his understanding that the White House proposal would separate him permanently from his daughter. The proposal and its resulting Senate bill invalidated most of the backlogged family-based applications submitted after May 1, 2005, including Toan s. Even worse, the proposal permanently terminated the ability of U.S. citizens to sponsor close family members, including all children over 21 and all siblings. To make this change, the White House essentially gutted the concept of family unity by eliminating four out of the five family preference categories unmarried adult children of U.S. citizens (FB-1), unmarried adult children of LPRs (FB-2B), married children of U.S. citizens (FB-3), and brothers and sisters of U.S. citizens (FB-4). In addition, the White House proposed to set an annual quota on parents of U.S. citizens. Through the quota, the White House proposal effectively moved parents of U.S. citizens out of the immediate relatives category and created a new preference category. The numerical limit on visas for this new category was set far below the known need, creating an immediate backlog of parents who wished to reunite with their children. In place of an immigration system based on family unification, the White House wanted to set up a point-based immigration system based largely on specialized occupational skills, level of education, and English language ability. The system gave very few points based on family relationships, and rewarded those points only when immigrants had already passed a high bar on the other qualifications. 46 The White House attempted to push through the proposal as a sincere effort to clear the backlogs for family-based immigrants, and they put forward the visa point system alternative as proof that their proposal was not anti-immigrant. But the central purpose of the proposal s changes to the parent and family preference categories was to decrease legal immigration by severely limiting the ability of immigrants to sponsor more immigrants through family-based immigration. The White House had been swayed by unfounded fears of chain migration, a baseless theory that through family 26 Asian Pacific American Legal Center

27 sponsorship, one immigrant would sponsor hundreds of other immigrant family members, creating as one anti-immigrant organization put it endless and often-snowballing chains of foreign nationals who are the chief culprits in America s current recordbreaking population boom and all the attendant sprawl, congestion, school overcrowding, and other impacts that reduce American s [sic] quality of life. 47 Such fears of chain migration were nothing new. They had prompted, in fact, regular attacks on the family preference categories for decades. The siblings category had come under attack in particular. As early as 1972, when Asian and Latino immigrants began to dominate the family-based immigration, Congressmember David W. Dennis (R-IN) introduced a bill amendment limiting the sponsorship of siblings to unmarried brothers and sisters of U.S. citizens. 48 In the 1980s, Senator Alan Simpson (R-WY) and Congressmember Romano Mazzoli (D-KY) proposed eliminating sibling sponsorship entirely a provision that would be proposed again and again in the ensuing decades. 49 Nor were the prior attacks on family unification limited to the siblings category. In 1982, for example, when Senator Simpson and Congressmember Mazzoli attempted to eliminate sibling sponsorship, they also proposed placing a cap on spouses, children, and parents of U.S. citizens. 50 In , Senators Simpson and Edward Kennedy (D-MA) proposed a bill that would include further limits on spouses and children of LPRs. 51 And in the 1990s, Congressmember Lamar Smith (R-TX) introduced a bill eliminating all nonnuclear family preferences. 52 Asian Pacific American Legal Center 27

28 In 2007, family advocates joined Toan and other immigrant families in protesting the White House attack on immigrant family unity. The proposed point system, they pointed out, would never work for women, who are both a majority of family-based immigrants and highly under-represented in employment-based immigration. 53 Nor would members of low-income and refugee families, with less access to high levels of education, skill development, and English language classes, be able to immigrate. They would instead face permanent family separation. Elderly immigrants would be negatively impacted in two ways. Elderly U.S. citizens would be permanently separated from their adult children, and long waits would immediately ensue for the elderly immigrant parents of U.S. citizens. And Asian American and Latino families would be disproportionately hurt by the eliminations in the White House proposal. Asian American families are among the highest users of the to-be-eliminated FB-3 and FB-4 categories, 54 while Latino families are among the highest users of the FB-1 and FB-2B family preference categories. 55 Both communities use the visas for parents heavily and would be hurt tremendously by limits on parents. Despite the protests of family advocates, the Bush administration and its allies in the Senate pushed forward the elimination of current family unification principles in a broad immigration reform bill during the spring and early summer of The bill was ultimately defeated because it included a legalization plan for undocumented immigrants but not because of its strong anti-family bent. Before its defeat, laudable efforts to remove the harmful family provisions were voted down at every stage. If we are to learn any lesson from recent and past history, it is that the attacks against siblings and other important immigration categories for family unification will be back in the future. The elimination of family preference and immediate relative categories will continue to be a legislative threat that family and immigrant rights advocates must monitor and fight at every turn. 28 Asian Pacific American Legal Center

29 My D. In the spring of 2007, My D., a mother of two, learned that the Bush administration had submitted a plan that would invalidate her October 2005 immigration application for her son in Vietnam. My had already waited many years to become a U.S. citizen so she could sponsor her son, so the news came as a huge blow to her. Even worse, the White House plan prevented her from ever reuniting with her son since it also eliminated most of the familybased immigration categories. She decided to write to her two senators from California, Senators Dianne Feinstein and Barbara Boxer, as the proposal had already become a bill in the Senate. Please stop [the senate bill], she wrote. This bill makes too many U.S. immigrant mothers suffer deeply. I am one of these suffering mothers. The prospect of being permanently separated from her son made her feel hopeless and very sad, almost to the point of dying. The bill felt like a sharp knife stabbing my heart. Later that spring, My learned that the White House proposal had been unable to pass a vote of the full Senate. The pleas from My and other immigrant mothers had fallen largely on deaf ears, but ironically her application was saved by anti-immigrant forces, whose active lobbying managed to sway many legislators to vote against the bill because it also included a quasi-legalization plan for undocumented immigrants. My s immigration application for her son would move forward. Today, My continues to wait for her family s reunification, the application for her son stuck in the immigration backlog for at least four more years. She is sad knowing that her eldest son is alone with no other family in Vietnam, but she talks to him regularly on the phone. We will be together soon, she tells him. Please don t despair. I love you. Asian Pacific American Legal Center 29

30 05 Proposed Solutions Increasing Family Visas Jun Yuan Ye is a Chinese immigrant living in Gardena, California. He is separated from his eldest daughter, who wishes to reunite with her family here. He suffers deeply knowing that his daughter has no other family in China and will have to wait years before coming to the United States. Because of the backlogs, Jun will have to wait seven to eight more years for his family s reunification. Perhaps the most obvious approach to resolving Jun s dilemma and the family unification and backlog problem is to increase the annual quota of visas available for the family preference categories. Increasing the number of visas for applicants in these categories would immediately shorten the backlogs and decrease wait times for those in line. A large enough increase of available visas each year could eliminate the backlogs over a short period of time. Several ways to increase visas for the family preference categories in this manner have already been proposed. During the last two sessions of Congress, Congressmember Sheila Jackson- Lee (D-TX) sought to double the annual quota on all family-sponsored visas, including both family preference categories and immediate relatives, from 480,000 to 960,000 per year. 56 While laudable, this proposal might not provide as much relief to the backlogs as one would expect. Without specific provisions to increase visas for family preference categories, the majority of the visa increase in Jackson-Lee s bill could go to immediate relatives, who already face no restrictions on visa numbers. An improvement on Jackson-Lee s proposal would be to remove immediate relatives from the overall family-sponsored immigration cap so that all visas under the cap could be used for the family preference categories. Congressmember Luis Gutierrez (D-IL) included such a provision in the STRIVE Act of The removal of immediate relatives from the cap would effectively increase the annual quota for the family preference categories from 226,000 to 480, According to one estimate, such a provision would have eliminated the family backlogs in an estimated six to eight years. 58 A general increase in visas for the family preference categories would immediately reduce backlogs and wait times across all preference categories. As with the STRIVE Act, such an increase could also eliminate the backlogs if the increase is large enough. However, unless a review and reconsideration of the quotas also occurs on a regular basis, this approach could fall short of providing a permanent solution (leaving visas unused or allowing backlogs to again develop). 30 Asian Pacific American Legal Center

31 Redefining Family Categories Another approach for providing broad and immediate relief from the backlogs is to reclassify certain family preference categories as immediate relatives. For instance, the spouses and minor children of LPRs or the adult children of U.S. citizens could be redefined as immediate relatives. Redefining preference categories in this manner would provide immediate relief from the backlog for applicants in those categories. Such a reclassification would also free up additional visas for all remaining family preference categories. In 1990, Congress considered a measure to reclassify the spouses and minor children of LPRs as immediate relatives effectively lifting the numerical limit on visas for those family members by placing them in the same category as spouses and minor children of U.S. citizens. Through the leadership of Congressmember Bruce Morrison (D-CT), then Chair of the House Immigration Subcommittee, the U.S. House of Representatives passed the measure. However, the Senate refused to approve the reclassification and the measure was dropped from the final bill. 59 Morrison s approach has become the most popular attempt in Congress at redefining family categories to provide relief from the backlogs. In 2007, Senator Hillary Clinton (D-NY) again proposed to reclassify the spouses and minor children of LPRs as immediate relatives in an amendment to the Border Security and Immigration Reform Act of The Clinton amendment failed to pass a Senate vote, but family and immigrant rights advocates continue to push for the reclassification in new bills. A reclassification of spouses and minor children of LPRs as immediate relatives would eliminate one of the harshest consequences of the backlog dilemma. Would-be immigrants could gain permanent residency without fear of a lengthy separation from wives, husbands, or young children. Any such redefining of family preference categories would bring our immigration system more in line with the popular definition of immediate relatives and provide an immediate and permanent solution for backlogs in those categories. Providing Relief for Special Categories Another way to provide relief from the backlogs is to exempt certain categories of family-sponsored immigrants from the annual quotas for humanitarian or other compelling reasons. For example, in recent years, legislation to provide relief to thousands of aging Filipino World War II veterans and their children has gained traction among many members of Congress. The veterans, mostly in their 80s and 90s, served with the U.S. Armed Forces during World War II when the Philippines was a colony of the U.S., but they Asian Pacific American Legal Center 31

32 were stripped of both the ability to become U.S. citizens and the rights and benefits given to all other veterans after the war. In 1990, Filipino WWII veterans were finally given the opportunity to obtain U.S. citizenship and spend their remaining years in the U.S., but these veterans soon found themselves separated from their children and families due to the backlog of visas to adult children of U.S. citizens. Thousands of these veterans remain separated from their families today and are spending their twilight years without the daily interaction and support of family members. 63 A bill to exempt the children of Filipino World War II veterans who are naturalized citizens of the U.S. from the annual family-sponsored immigration quotas has been proposed in Congress. In 2006, the legislation, known as the Filipino Veterans Family Reunification Bill, was successfully added as an amendment to a larger immigration bill that passed in the Senate. However, members of the U.S. House of Representatives prevented the larger bill from enactment, and the Filipino veterans amendment died along with the Senate bill. 64 Establishing Caps on Waiting Times A cap on wait times in the backlogs is a proven measure for providing relief to family-based immigrants. Such a measure would provide visas immediately and in the future to any familysponsored applicant who has waited for a specified amount of time. The cap would provide immediate relief for severe cases of family separation while providing a safeguard against future cases of interminable backlogs. Congress enacted such a cap in 2000 with the Legal Immigration Family Equity Act and its amendments (LIFE Act). 60 The LIFE Act established the V-visa, a temporary visa for the spouses and children of legal permanent residents who had already waited in the backlogs for three or more years. The V-visa allowed these family members to live and work in the U.S. with their U.S. resident family members while waiting in the backlogs for their permanent immigrant visas. Unfortunately, the LIFE Act was a one-time fix for the spouses and children of legal permanent residents who had applied for their visas prior to December 21, For subsequent applicants, the V-visa and corresponding cap on wait times was not an option. Several organizations have been pushing for a more permanent cap on wait times in recent years. The National Immigration Forum, a leading immigrant rights organization, has proposed a five-year cap on wait times for all backlogged applicants. 61 In 2007, a nationwide coalition of community leaders and organizations went even further in their Unity Blueprint for Immigration Reform, which proposed a one-year cap on wait times for family members Asian Pacific American Legal Center

33 Recapturing Unused Visas Recapturing unused visas from past years would immediately reduce the backlogs without increasing the total number of allocated visas. Paradoxically, thousands of family and employment-based visas are not used every year because of administrative backlogs and bureaucratic delays and are lost because unused visas do not roll over to the following year. If made permanent, recapturing unused visas would ensure that suffering families receive the maximum number of allocated visas provided by Congress. For instance, in 2007, administrative delays kept More than 31,000 family preference visas more than one out of every seven allocated visas from being issued ,100 close family members and everyone behind them in the backlogs would have to wait another year before reuniting with their families due to bureaucratic ineptitude. The total number of family-based immigrant visas lost from 1998 to 2007 was an astonishing 209,769 visas. 66 In 2008, Congressmembers Zoe Lofgren (D-CA) and James Sensenbrenner (R-WI) introduced a bill to recapture unused family and employmentbased visas from 1992 to 2007 and create a rollover mechanism for unused visas in the future. 67 Despite bipartisan support, the bill remains pending as of this report s publication. Increasing Per Country Limits Increasing per country limits on visas would provide relief for family-based immigrants from the countries with the largest backlogs and longest wait times. These countries include China, India, Mexico, and the Philippines, which all have more immigration applicants than other countries because of a combination of their large populations, physical proximity, and/or historical and familial ties with the U.S. Mexico and the Philippines, for instance, have the 11 th and 12 th largest populations worldwide and both have a close history and unique ties with the U.S. Without an increase in the per country limits, applicants from Vietnam are likely to join the other four countries with separate and longer wait times. Vietnam has the 13 th largest population and obvious recent ties with the U.S. as a result, Vietnam also has one of the largest backlogs in the family-based immigration system. 68 Recent immigration legislation has often proposed an increase from seven to 10 percent of the worldwide total in the per country limits on visas. For instance, Congressmember Luis Gutierrez (D-IL) included such a provision in the STRIVE Act of In 2008, Congressmember Zoe Lofgren (D-CA) proposed to increase the per country limit on visas to 10 percent in the High Skilled Per Country Level Elimination Act. 70 Asian Pacific American Legal Center 33

34 06 Summary of Recommendations The Asian Pacific American Legal Center supports fair and humane immigration reform principles that keep families together and protect rights and liberties. Such immigration reform should include a path to legal status and citizenship for undocumented immigrants and reasonable and adequate channels for legal immigration in the future. In particular, the Asian Pacific American Legal Center strongly believes that the tremendous backlogs in the family-based immigration system must be eliminated. Asian American families suffer from some of the worst immigration backlogs in the world. Therefore, we recommend the following legislative solutions: 1. 1 Remove immediate relatives from the overall family-sponsored immigration cap (which they are not subject to in any case). Removing immediate relatives from the overall cap will reduce the backlogs immediately and eliminate the backlogs within six to eight years Recapture unused visas from 1992 to Recapturing unused visas from the past fifteen years will help to reduce the backlogs. Rolling over unused visas in the future will ensure the maximum use of all visas allocated by Congress Reclassify the spouses and minor children of LPRs as immediate relatives. Reclassifying this category will provide immediate relief for many families and permanently eliminate the harmful practice of separating young spouses and their children from each other Exempt Filipino WWII veterans and other special categories of family-sponsored immigrants from the annual quotas. Creating exemptions for these categories will provide humanitarian relief for individuals and their families who have served the U.S. well Increase per country limits on visas to 10% of the overall quota. Increasing per country limits will help decrease the most egregious backlogs for immigrants from China, India, Mexico, and the Philippines Place a permanent three-year cap on wait times for family-sponsored visas. A three-year cap will ensure that backlogs are not developed in future years and also provide immediate relief for many in our current backlogs Add permanent partner to sections of U.S. immigration law where spouse now appears. Adding this term would allow U.S. citizens and permanent residents to sponsor their same-sex partners for immigration to the U.S., providing an immediate fix for many bi-national same-sex couples and their families who currently face separation or exile. 34 Asian Pacific American Legal Center

35 To resolve the present dilemma facing many U.S. families separated by our immigration backlogs, we urge Congress to immediately enact a bill including all of these fixes. In the absence of such a bill, we strongly recommend that Congress enact any bills focusing on one of more of the above fixes, such as the Filipino Veterans Family Reunification Act or the Uniting American Families Act. As Congress and a new administration look to enact comprehensive immigration reform in 2009 and beyond, we hope they will understand that any truly comprehensive immigration reform bill must include the above legislative fixes if it is to achieve order and a permanent solution to the many problems within our immigration system today. The Asian Pacific American Legal Center also encourages Asian Americans to share their personal immigration stories with us and to contact their members of Congress to ask for fair and humane immigration reform. To find your member of the U.S. House of Representatives, visit or call the House switchboard at (202) To contact your Senators, visit or call the Senate switchboard at (202) Asian Pacific American Legal Center 35

36 07 Endnotes 1 Newport, Frank. April 4, Americans Continue to Favor the Return of Elian Gonzalez to Cuba. Gallup News Service. 2 Lawrence, Stewart J Divided Families: New Legislative Proposals Would Needlessly Restrict Family-Based Immigration. Washington, D.C.: Immigration Policy Center. 3 Ibid. 4 Asian American Justice Center and Asian Pacific American Legal Center A Community of Contrasts: Asian Americans and Pacific Islanders in the United States. Washington, D.C.: AAJC and APALC. In the U.S., Asian Americans are 63% foreign-born and Latinos are 40% foreign-born. By comparison, the average rate of foreign-born for the entire U.S. population is 11%. 5 Legal Momentum Women Immigrants and Family Immigration. Washington, D.C.: Legal Momentum. 6 Catholic Legal Immigration Network, Inc Placing Immigrants at Risk: The Impact of Our Laws and Polices on American Families. Washington, D.C.: Catholic Legal Immigration Network, Inc. 7 Lee, Erika At America s Gates: Chinese Immigration During the Exclusion Era, Chapel Hill: University of North Carolina Press. 8 Tichenor, Daniel Dividing Lines: The Politics of Immigration Control in America. Princeton, N.J.: Princeton University Press. 9 Ibid. 10 Daniels, Roger Guarding the Golden Door: American Immigration Policy and Immigrants Since New York: Hill and Wang. 11 Jefferys, Kelly. Characteristics of Family-Sponsored Legal Permanent Residents: Washington, D.C.: DHS Office of Immigration Statistics. 12 Lawrence, Stewart J Divided Families: New Legislative Proposals Would Needlessly Restrict Family-Based Immigration. Washington, D.C.: Immigration Policy Center. 13 Cagney, Kathleen A., Christopher R. Browning & Danielle M. Wallace. May The Latino Paradox in Neighborhood Context: The Case of Asthma and Other Respiratory Conditions, American Journal of Public Health 97(5). Washington, D.C.: American Public Health Association. 14 Duleep, Harriet. May 8, Is Family-Based Immigration Good for the U.S. Economy? Testimony of Harriet Duleep, Professor, Thomas Jefferson Program in Public Policy, The College of William and Mary, before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. Professor Duleep refers to Sorenson, Elaine Measuring the Employment Effects of Immigrants with Different Legal Statuses on Native Workers, Immigrants and Immigration Policy: Individual Skills, Family Ties, and Group Identities, Greenwich, CT: JAI Press. 15 Wiata, Edward. May 4, Study Shows Immigrants A Real Engine for Growth, USA Today. 16 Duleep, Harriet. May 8, Is Family-Based Immigration Good for the U.S. Economy? Testimony of Harriet Duleep, Professor, Thomas Jefferson Program in Public Policy, The College of William and Mary, before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. 17 Lawrence, Stewart J Divided Families: New Legislative Proposals Would Needlessly Restrict Family-Based Immigration. Washington, D.C.: Immigration Policy Center. See also examples of Ming Liu and Osvaldo Fernandez in Chapter 3 of Hing, Bill Ong Deporting Our Souls: Values, Morality, and Immigration Policy, New York, NY: Cambridge University Press. 18 Migration Policy Institute Data Hub Global Remittances Guide. Washington, D.C.: Migration Policy Institute. 19 U.S. Department of State. November Visa Bulletin for December Washington, D.C.: U.S. Department of State. 36 Asian Pacific American Legal Center

37 20 Asian American Justice Center. May 9, Asian American Justice Center Applauds the Introduction of Lofgren-Sensenbrenner Recapture Visa Bill: Calls on Congress to Address Family and Employment Visa Backlogs. Washington, D.C.: Asian American Justice Center. 21 Unite Families Home. UniteFamilies.org. 22 Unite Families Alternatives. UniteFamilies. org. 23 Jefferys, Kelly. October Characteristics of Family-Sponsored Legal Permanent Residents: Washington, D.C.: DHS Office of Immigration Statistics. 24 Jefferys, Kelly. October Characteristics of Employment-Based Legal Permanent Residents: Washington, D.C.: DHS Office of Immigration Statistics. 25 Jefferys, Kelly. December Characteristics of Diversity Legal Permanent Residents: Washington, D.C.: DHS Office of Immigration Statistics. 26 Jefferys, Kelly. May Refugees and Asylees: Washington, D.C.: DHS Office of Immigration Statistics. 27 Legal Momentum Women Immigrants and Family Immigration. Washington, D.C.: Legal Momentum. 28 Ibid. 29 DHS Office of Immigration Statistics Table 10: Persons Obtaining Legal Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2006, Yearbook of Immigration Statistics: Washington, D.C.: DHS Office of Immigration Statistics. 30 DHS Office of Immigration Statistics Yearbook of Immigration Statistics: Washington, D.C.: DHS Office of Immigration Statistics. 31 Asian American Justice Center and Asian Pacific American Legal Center A Community of Contrasts: Asian Americans and Pacific Islanders in the United States. Washington, D.C.: AAJC and APALC. 32 DHS Office of Immigration Statistics Yearbook of Immigration Statistics: Washington, D.C.: DHS Office of Immigration Statistics. 33 Asian American Justice Center Asian Americans and Family-Sponsored Immigration. Washington, D.C.: Asian American Justice Center. 34 Ibid. 35 Narasaki, Karen. May 22, Asian American Perspective on Comprehensive Immigration Reform, Testimony of Karen Narasaki, Executive Director, Asian American Justice Center, before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration. 36 DHS Office of Immigration Statistics Yearbook of Immigration Statistics: Washington, D.C.: DHS Office of Immigration Statistics. 37 Asian American Justice Center and Asian Pacific American Legal Center A Community of Contrasts: Asian Americans and Pacific Islanders in the United States. Washington, D.C.: AAJC and APALC. 38 DHS Office of Immigration Statistics Yearbook of Immigration Statistics: Washington, D.C.: DHS Office of Immigration Statistics. 39 Migration Policy Institute. June How Changes to Family Immigration Could Affect Source Countries Sending Patterns. Washington, D.C.: Migration Policy Institute. 40 Ibid. 41 DHS Office of Immigration Statistics Table 5: Immigrant Visas Issued and Adjustments of Status Subject to Numerical Limitations, Fiscal Year 2005, Yearbook of Immigration Statistics: Washington, D.C.: DHS Office of Immigration Statistics. 42 Human Rights Watch and Immigration Equality Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under U.S. Law. New York: Human Rights Watch/ Immigration Equality. Asian Pacific American Legal Center 37

38 Continued: Endnotes 43 Stritof, Sheri and Bob Stritof Same-Sex Marriage FAQ Gender-Neutral Marriage Laws. About.com, a part of The New York Times Company. 44 Asian American Federation of New York Asian Pacific American Same-Sex Households: A Census Report on New York, San Francisco, and Los Angeles. New York: Asian American Federation of New York. 45 Human Rights Watch and Immigration Equality Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under U.S. Law. New York: Human Rights Watch/ Immigration Equality. 46 White House, March 28, PowerPoint presentation. Washington, D.C.: White House. See also Senate bill 1348, Comprehensive Immigration Reform Act of 2007, for details of the point proposal. 47 See Numbers USA website, Hot Topic: Reducing Legal Immigration at hottopic/overall.html and Numbers USA, Chain Migration and the Senate Immigration Bill: The Impact of a Single Guest Worker Over a 15 Year Period. 48 Strach, Patricia All in the Family: the Private Roots of American Public Policy, Stanford, California: Stanford University Press. 49 Tichenor, Daniel Dividing Lines: The Politics of Immigration Control in America. Princeton, N.J.: Princeton University Press. 50 Ibid. 51 Ibid. 52 Strach, Patricia All in the Family: the Private Roots of American Public Policy, Stanford, California: Stanford University Press. 53 Legal Momentum Women Immigrants and Family Immigration. Washington, D.C.: Legal Momentum. 54 Asian American Justice Center Asian Americans and Family-Sponsored Immigration. Washington, D.C.: Asian American Justice Center. 55 Migration Policy Institute. June How Changes to Family Immigration Could Affect Source Countries Sending Patterns. Washington, D.C.: Migration Policy Institute. 56 Representative Sheila Jackson-Lee. H.R. 750, Save America Comprehensive Immigration Act of Introduced in Congress on January 31, Representative Luis Gutierrez, H.R. 1645, Security Through Regularized Immigration and A Vibrant Economy Act of 2007 or STRIVE Act. Introduced in Congress on March 22, Narasaki, Karen. May 22, Asian American Perspective on Comprehensive Immigration Reform, Testimony of Karen Narasaki, Executive Director, Asian American Justice Center, before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration. 59 Unite Families What s the Solution? UniteFamilies.org. 60 Legal Immigration Family Equity Act (LIFE Act), Title XI of H.R. 5548, and the LIFE Act Amendments, Title XV of H.R Signed into law by President Clinton on December 21, National Immigration Forum. January Immigration Backlogs are Separating American Families. Washington, D.C.: National Immigration Forum. 62 Unity Blueprint Coalition. March 29, Unity Blueprint for Immigration Reform. Unityblueprint.org. 63 National Network for Veterans Equity FAQ on Filipino World War II Veterans. National Network for Veterans Equity. 64 Senator Daniel Akaka. S.A to S.A of S Agreed to in Senate 87-9 on May 24, Jefferys, Kelly and Randall Monger. March U.S. Legal Permanent Residents: Washington, D.C.: DHS Office of Immigration Statistics. 38 Asian Pacific American Legal Center

39 66 Ericson DHS Office Herbas of Immigration designed the Statistics. cover and layout Table of the report. 6: Persons Obtaining Legal Permanent Resident Thank Status you by to Type the and following Major individuals Class of Admission: for contributing Fiscal photos: Aileen Almeria Louie, Years Marie 1998 Auyong, to 2007, Lona Yearbook Cheung, of Immigration Ericson Herbas, Daniel Huang, Ryan Statistics: Khamkongsay, Washington, Justin Ma, D.C.: Hala DHS Masri, Office Nam-Pho of Nguyen, Tammy Peng, Immigration Statistics. Paloma Rosenbaum, Mary Sam, Reshma Shamasunder, Jane Su, 67 Bonnie Representative Tang, My Zoe B. Trinh, Lofgren. Karin H.R. Wang, Samuel Introduced Wei, and Clayton Yeung. in Congress on April 23, Wikipedia. June 19, List of Countries by Population. En.wikipedia.org. 69 Representative Luis Gutierrez. H.R. 1645, Security Through Regularized Immigration and A Vibrant Economy Act of 2007 or STRIVE Act. Introduced in Congress on March 22, Representative Zoe Lofgren. H.R. 5921, High Skilled Per Country Level Elimination Act. Introduced in Congress on April 29, Asian Pacific American Legal Center 39

40 This report made possible with support from the Asian Pacific American Legal Center 1145 Wilshire Blvd, 2nd Floor Los Angeles, CA Tel: Asian Pacific American Legal Center. All Rights Reserved. No part of this publication may be reproduced in any form by any means without attribution. Printed in the United States of America.