Since its inception in January 2017, the Trump Administration proposed and implemented a wide range of reforms, purportedly to fix our broken immigration system. Many of these reforms have been focused heavily on national security and enforcement but have had little positive impact on resolving some long-standing challenges experienced by those who are attempting to legally immigrate to the United States. In reality, these “reforms” have curtailed legal immigration, ultimately resulting in hardships to families.

While many are familiar with the Travel Ban, Extreme Vetting, and Border Wall initiatives, there are other reforms that are insidious in the ways they undermine families. We discuss some of these challenges below and how they impact families in the United States.

Increase in Processing Times

Under the Trump Administration, the processing times of the U.S. Citizenship & Immigration Services (USCIS), the federal agency that oversees lawful immigration to the United States and is responsible for adjudicating all immigration-related applications and petitions in the United States, have increased dramatically, resulting in extensive delays for benefits such as lawful permanent resident status (also known as the “green card”) and employment authorization, to name a few. As a result of several executive orders issued by the Administration, there is now a backlog of more than 2.3 million cases, and USCIS processing times have increased by 46%.

USCIS has acknowledged that its expanded in-person interview requirement, which now includes all employment-based petitions, has aggravated these delays. It is important to understand that the in-person interviews of employment-based green card applications do not serve their purported purpose: to verify the veracity of the employment offer and protect the U.S. labor market, as these issues were resolved when the underlying immigrant petition was adjudicated and approved, before the applicant is scheduled to be interviewed by USCIS. Furthermore, the background checks conducted in connection with in-person interviews are identical to those that were conducted when these applications were processed prior to October 2017 without an interview. Thus it is difficult to ascertain the benefit of these interviews other than to slow down an already over-burdened system.

The increased workload at USCIS local offices, forcing the re-allocation of resources to employment-based green card interviews, and the prohibition on existing USICS officers increasing their case load, has created untenable delays in all other areas including family-based green cards and naturalization applications, which we anticipate will only continue to worsen.

Although “increased processing times” may sound innocuous and inconsequential, such delays have real-world consequences as U.S. companies are unable to hire and retain highly talented and skilled workers, parents are unable to maintain their work authorization and are therefore unable to provide financial support to their families, and families are separated for an extensive time.

Visa Retrogression

Since 1991, Congress set a limit on the number of immigrant visas that could be issued annually. In order to become a lawful permanent resident of the U.S. (i.e., a green card holder or LPR), an immigrant visa must be available to the foreign national at the time he/she applies either for adjustment of status (in the United States) or for consular processing (outside of the United States). These immigrant visas are broken down into “preferences” or “quotas” based family relationships and employment. Each “preference” is allocated a certain number of immigrant visas annually. Preferences are based on family relationships, ranging from children and spouses of permanent residents to siblings of U.S. citizens, and based on skill level in the context of employment-based immigration. All preference categories account for a total of approximately 366,000 immigrant visa numbers each year. These preferences are further broken down into nationality-based quotas for nationals of India, China, Mexico, El Salvador, Guatemala, Honduras, Vietnam and the Philippines, as there is a maximum percentage of immigrant visas that can be allocated to a single country in one year, and these countries have exceeded their maximum percentage. Immigrant petitions filed on behalf of foreign nationals from these “over-subscribed” countries are subject to a separate numerical count.

Visa retrogression occurs when more people apply for a visa in a preference category or nationality quota than there are visas available. Once retrogression occurs, a backlog is created whereby USCIS approves a family- or employment-based immigrant petition, but foreign nationals cannot become lawful permanent residents because an immigrant visa number is not available in their preference. This backlog continues to grow because Congress has not increased the number of immigrant visa numbers available since 1991 and demand increasingly outruns supply.

Since 1991, wait times for immigrant visa numbers have more than doubled, with an average wait time of well over 10 years for many family-sponsored and employment-based petitions. These wait times are dramatically increased for those nationals of quota countries. For example, fourth preference sibling-based petitions for nationals of Mexico and the Philippines have a wait time of well over 20 years for an immigrant visa, while Indian nationals have a wait time of well over 10 years for many employment based visas. According to the Cato Institute, “Behind those immigrants who applied for green cards in 2018 stand nearly five million people waiting in the applicant backlog. Without significant reforms, wait times will become impossibly long for these immigrants.”

In fact, it is anticipated that backlogs may reach egregious levels: 54 years for Indian nationals with second preference employment-based immigrant petitions (these include petitions for skilled workers, individuals with exceptional ability and national interest waivers); and 102 years for Mexican nationals who file immigrant petitions for their siblings. The Cato Institute estimates that that 675,000 potential legal immigrants, or 14% of those who are waiting since 2018, could die before immigrant visa numbers become available to them.

These terribly long time periods are the result of artificial caps that separate families for extensive periods and otherwise prohibit lawful migration to the United States.

Cessation of H-4 Employment Authorization

The term “family separation” is often associated with the issues plaguing the Southern Border of the United States. However, several of this Administration's reforms result in separations that escape everyday reporting and fly under the radar of public scrutiny. The cessation of employment authorization for H-4 visa holders (spouses of H-1B visa holders) is one such case.

Currently, an H-4 visa holder is entitled to work authorization if his/her H-1B spouse has an approved immigrant petition, but cannot file for adjustment of status to permanent resident due to the visa retrogression (discussed above). This issue affects almost exclusively nationals of China and India. The public policy behind this is based on the premise that, but for the visa retrogression, that spouse would already have been granted work authorization under otherwise normal circumstances.

Since May 26, 2015, H-4 visa holders have been able to obtain and renew work authorization cards (80 FR 10283). According to USCIS, 91,000 initial work authorization documents have been approved since that time. Further, NBC surveyed 2,411 H-4 visa holders who were granted work authorization, and revealed that almost all of these individuals had bachelor's degrees, and 60% held post-graduate degrees. Clearly, the H-4 work authorization is beneficial both to the individual and his/her family as well as the U.S. economy by enabling U.S. employers to attract and retain highly skilled workers.

Based on this long-standing policy, many families established their lives in the United States, buying houses, starting families, sending their children to U.S. universities or private schools, and otherwise becoming a part of the fabric of our society.

The proposed rule to revoke the work authorization for H-4 visa holders, which is currently under review with the Office of Management and Budget (OMB) as of February 2019, will have surreptitiously destructive consequences to families in the United States. The termination of work authorization for H-4 visa holders will strip families of income that they have relied on for years. Furthermore, in many cases, the income of the H-4 visa holder was considered when determining the size of a mortgage in purchasing a family home, and thus the loss of that income may result in loss of a family home, and the inability to support a family in the United States.

It is important to understand that many families who find themselves caught in this position are blended-nationality families, where the parents are foreign nationals but the children are U.S. citizens. When faced with the choice to move back to their country of origin, the family must consider whether bringing a U.S. citizen child along may result in persecution of the family or the child. In other cases, the child's inability to speak the home country's native language and lack of familiarity with the culture, may prevent that U.S. citizen child from obtaining an education or being employed. Thus the parents may have to consider the unimaginable—leave that U.S. citizen child in the U.S., separating the family for prolonged periods of time, possibly permanently, based on the current projections of visa retrogression.

Because of the egregious delays, and the disproportionally severe consequences of policies that do not seem to serve a logical purpose in national security or the protection of the U.S. labor force, the U.S. Government Accountability Office (GAO) has agreed to open an investigation as to these delays. In a letter to members of Congress, the GAO said it plans to begin its work late in 2019. This is both a victory for transparency and a beacon of hope that the opening of an investigation will be the driving force for constructive change.

Immigration reform is a very important national interest and, more than ever, critical, as our current system only serves to prolong lengthy separations and reduce benefits, which harms families and our communities. Such reforms, ultimately, must logically support a family's ability exist together and remain economically self-sustaining and independent. As attorneys, and as a society, we are constantly advocating for individuals to follow the law and immigrate to the U.S. legally. Unfortunately, our current immigration system forces families to make those impossible decisions and sets people up for failure. It is time for meaningful, compassionate and innovative immigration reform that puts families first.

Lin R. Walker and Stacey A. Simon are associates with Meyner & Landis in Newark. Their practices focus on employment-based and family-based immigration law.