A Conservative and Compassionate Approach to Immigration Reform

Perspectives from a Former US Attorney General

Alberto R. Gonzales, David N. Strange

• Publisher: Texas Tech University Press
• Year: 2020
• eBook ISBN: 9780896728974
• Topic: Politics & International Relations
• Subtopic: Immigration Law
• Index: Politics & International Relations

Although the United States is a nation founded by immigrants, Alberto R. Gonzales and David N. Strange believe that national immigration policy and enforcement over the past thirty years has been inadequate. This failure by federal leaders has resulted in a widespread introduction of state immigration laws across the country. Gonzales and Strange assert that the solution to current immigration challenges is reform of federal immigration laws, including common sense border control, tougher workplace enforcement, changes to the Immigration and Nationality Act, and a revised visa process.Gonzales and Strange embrace many provisions of current pending legislation, but are sharply critical of others. Their proposals call for an expansion of the grounds of inadmissibility to foster greater respect of law and to address the problem of visa overstays, while also calling for a restriction on grounds of inadmissibility in other areas to address the large undocumented population and increasing humanitarian crisis. They explore nationality versus citizenship and introduce a pathway to nationality as an alternative to a pathway to citizenship. This immigration policy blueprint examines the political landscape in Washington and makes the argument that progress will require compromise and the discipline to act with compassion and respect.

Chapter One

Basics of U.S. Immigration Law

Introduction

Aliens¹ entering into the United States are generally divided into temporary² and permanent³ categories.⁴ Aliens within the temporary categories are nonimmigrants; all other aliens present in the United States, including lawful permanent residents (LPRs), are immigrants.⁵

The nonimmigrant⁶ categories are nicely laid out in Immigration and Nationality Act⁷ (INA) § 101(a)(15).⁸ With some exceptions every alien seeking to enter the United States is presumed to be an immigrant until he⁹ establishes that he is entitled to nonimmigrant status under INA § 101(a)(15).¹⁰ Nonimmigrant admissions¹¹ into the United States are by no means insignificant. There were approximately 165.5 million nonimmigrant admissions into the United States in fiscal year 2012 alone.¹² By comparison, there were just slightly over one million immigrant admissions in that same year.¹³ Immigration reform typically focuses extensively on immigrant admissions into the United States,¹⁴ and nonimmigrant issues are largely overlooked by the mainstream media. We think both are deserving of significant consideration.

Immigrant Admissions and the Quota System

In order to immigrate to the United States, an alien must fit into one of the categories established by Congress¹⁵ that allow for immigrant status.¹⁶ Moreover, an alien seeking admission into the United States may not be subject to any of the inadmissibility grounds found in INA § 212(a).¹⁷

The immigrant categories are the family-based,¹⁸ employment-based,¹⁹ diversity-based,²⁰ and “miscellaneous other” categories.²¹ These categories, in turn, are further divided into subcategories.²² Most of these subcategories are numerically limited, with some exceptions discussed below, and may not exceed an annual quota set by Congress.²³

The annual worldwide quota for family-based immigration is 480,000, minus the number of immediate relatives who were admitted in the preceding fiscal year, plus any employment-based immigrant visas that were available in the preceding fiscal year but not used.²⁴ However, this number may not be less than 226,000 in any fiscal year.²⁵

The annual quota for employment-based immigration is 140,000, plus any family-based immigrant visas that were available in the preceding fiscal year but not used.²⁶ The annual quota for diversity-based immigration is 55,000.²⁷ The “miscellaneous other” category is subject to quotas specific to the miscellaneous forms of relief available therein,²⁸ and those quotas will not be specifically addressed in this book.

Per-Country Limits within the Quota System²⁹

The worldwide quotas are also subject to numerical limitations on individual foreign states.³⁰ For purposes of the quota system, a person seeking to immigrate is charged, or allocated, to the foreign state (including any colony or territory of the foreign state) in which he or she was born.³¹ Moreover, the number of immigrant visas available in the family-based and employment-based categories to aliens charged to any particular foreign state in any fiscal year may not exceed 7 percent (or 2 percent in the case of chargeability to the colony or territory of a foreign state) of the combined worldwide limits.³² The effect of these per-country limits is that the quotas may fill faster for aliens charged to particular countries than for aliens charged to other countries, resulting in longer waiting times for people from certain countries.³³ Similarly, under the diversity-based immigrant program, the percentage of visas available to aliens charged to any particular foreign state may not exceed 7 percent in any fiscal year.³⁴

Immigration to the United States

Family-Based Immigration

Immediate Relatives

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The family-based provisions are principally found at INA §§ 201(a)(1), 201(b)(2), 201(c), 203(a), and 203(d).³⁵ These provisions play a huge role in lawful immigration to the United States and account for approximately two-thirds of all lawful immigration.³⁶ Accordingly, it is reasonable to assume that any focus on immigration reform should, at a minimum, include some consideration of family-based immigration.³⁷

The family-based category consists of immediate relatives and preference relatives.³⁸ Immediate relatives are the children,³⁹ spouses,⁴⁰ and parents⁴¹ of U.S. citizens.⁴² If an alien fits into one of these described groups, a U.S. citizen may file an immigrant petition on behalf of that alien.⁴³ In the case of an alien parent, the U.S. citizen who is filing a petition for the alien parent must be at least twenty-one years old.⁴⁴ An alien child born abroad to an alien lawfully admitted for permanent residence is also considered an immediate relative for classification purposes.⁴⁵ Immediate relatives are not subject to numerical limitations and as a result are exempt from the quota system.⁴⁶

Preference Relatives

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Preference relatives, on the other hand, are subject to the quota system and have numerical subceilings.⁴⁷ There are four preference categories, identified as first through fourth preferences.⁴⁸ These preference categories describe the people who fit therein (i.e., for whom an immigrant petition may be filed),⁴⁹ and each preference category has a numerical cap.⁵⁰ If an alien fits into one of these described preference groups, a U.S. citizen or LPR may file an immigrant petition on behalf of that alien.⁵¹

First Preference Category: The first preference category is limited to unmarried adult sons and daughters of U.S. citizens.⁵² This preference category is allocated a number of immigrant visas not to exceed 23,400, plus any visas not required by the fourth preference.⁵³

Second Preference Category: The second preference category allows for two subgroups of intending immigrants.⁵⁴ The first subgroup permits aliens lawfully admitted for permanent residence to file immigrant petitions for their spouses and children.⁵⁵ The second subgroup permits aliens lawfully admitted for permanent residence to file immigrant petitions for their unmarried sons and daughters.⁵⁶ The two subgroups in this preference category are allocated a number of immigrant visas not to exceed 114,200, plus the number (if any) by which the worldwide family-based level exceeds 226,000, plus any visas not required by the first preference.⁵⁷ Moreover, Congress has specifically mandated that at least 77 percent of the immigrant visas allocated to this preference category must be allocated to the first subgroup described therein.⁵⁸

Third Preference Category: The third preference category is limited to married sons and daughters of U.S. citizens.⁵⁹ A married son or daughter may be one who has not yet attained twenty-one years of age but is no longer a child for immigration purposes by virtue of marriage.⁶⁰ This preference category is allocated a number of immigrant visas not to exceed 23,400, plus any visas not required by the first and second preferences.⁶¹

Fourth Preference Category: The fourth preference category is limited to brothers and sisters of U.S. citizens.⁶² For this preference category the U.S. citizen sibling filing an immigrant petition must be at least twenty-one years old.⁶³ This preference category is allocated a number of immigrant visas not to exceed 65,000, plus any visas not required by the first, second, and third preferences.⁶⁴

Employment-Based Immigration^6...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Foreword
• Preface
• Acknowledgments
• Selected Abbreviations
• Chapter One - Basics of U.S. Immigration Law
• Chapter Two - Strategy for Success
• Chapter Three - The Known and Unknown Challenges of Unauthorized Immigration
• Chapter Four - Federalism and the Case for State Action
• Chapter Five - Objectives and Obstacles to Federal Policy
• Chapter Six - Securing Our Borders
• Chapter Seven - Workplace Enforcement
• Chapter Eight - Revising the Visa Process
• Chapter Nine - Amending the INA
• Chapter Ten - Dealing with the Children of Unauthorized Immigrants beyond High School
• Chapter Eleven - Mexico's Impact
• Epilogue
• Appendix 1: Nonimmigrant Visas
• Appendix 2: Relevant Sections of Law Pertaining to U.S. Nationality
• Appendix 3: Proposed Amended INA § 245(i)
• Appendix 4: Proposed Amended INA § 249
• Appendix 5: Proposed INA § 212(a)(6)(H)
• Appendix 6: Proposed Amended INA § 212(a)(9)(B) and Deletion of INA § 212(a)(9)(C)
• Notes
• Index
• Back Cover