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Nuclear Families Should Not be Separated During the US Immigration Process

On 14 March 2013, the Immigration and Border Security Subcommittee held a hearing entitled "The Separation of Nuclear Families Under U.S. Immigration Law." The subcommittee heard testimony from organisations working on US immigration matters such as the National Council of La Raza and the Migration Policy Institute, as well as from Mr. Arivalan, a lawful permanent resident ('green card holder').

Mr. Arivalan recounted his story of having arrived in the USA as an L-1 Intra-Company Transferee. Under this visa type, he would have been able to bring his spouse to the USA right away, and she would have been able to obtain the right to work. However, he didn't marry his now wife until after he became a lawful permanent resident (LPR). His wife is from Malaysia. To his great shock, Mr. Arivalan learned that his wife could not immediately join him in the USA. "I was shocked to find that because I had made a commitment to America [by obtaining permanent resident status], my wife must wait in another country for years. If I was just a temporary worker, my wife would not be 12,000 miles away", Mr. Arivalan specified. As the wife of a green card holder, she is placed in the F2 second preference category of the family preference immigrant visas. Because only 87,900 immigrant visas are issued each year to spouses and minor children of LPRs and the demand outweighs the supply, his wife must wait her turn to receive an available immigrant visa. At the moment, the wait (which can change for the better or worse at any time) is over two years, although in times past it has been as long as six years. Mr. Arivalan's wife is still waiting abroad for a visa to become available, separated from her husband in the meantime.

US citizens petitioning for their foreign spouse to join them in the USA likewise may face a period of separation, albeit much shorter than green card holders. This is because foreign spouses of US citizens are classified as "immediate relatives" for whom a visa is available straight away. Nonetheless, due to the time needed to process the spousal immigrant petition, the wait at the moment is approximately 10 months (also subject to change at any time). However, US citizens have an important advantage over 'green card' holders not only in the shorter waiting time to be reunited with their spouse, but also in their ability to move abroad to live with their spouse whilst the immigrant petition is pending. Green card holders are required to live a majority of the time in the USA, and they risk losing their LPR status if they spend too much time abroad. Therefore, it is much more difficult for an LPR to relocate abroad so as to not be separated from his or her spouse during the pendency of the immigrant visa petition. Of course, moving abroad is often very difficult even for US citizens due to US employment and other commitments which cannot be abandoned.

Fundamentally, the witnesses told the Subcommittee that it is unfair that US citizens and LPRs are denied a basic right – that of having their spouse by their side right away- when this same right is given to non-immigrant visa holders whose spouses are able to join the visa holder in a very short amount of time. Additionally, the witnesses challenged the propriety of the current system as not serving any merituous national interest. "What national interest could it possibly serve, to tell husbands and wives that they must sleep in separate countries for five years?", Mr Emery, President of the American Families United, asked rhetorically. Indeed, it seems that rather than strengthening the marriages involved, the government's policy's only possible effect would be adverse. The difficult immigration-related separation faced by LGBT couples was mentioned only in passing; you can read more about this on an earlier blog post discussing the hardships faced by bi-national LGBT couples, and the reasons why there is hope that change may be on its way.

Overwhelmingly, the testimony of the witnesses spoke of a broken US immigration system, and the Committee was urged to promptly and completely restructure family-based immigration laws and policies. Ms Martinez-De-Castro, Director of the Immigration and Civic Engagement National Council of La Raza and an immigrant to the USA herself, aptly summarised the sentiments expressed throughout the hearing:

"My family and my husband's family [N.B. also an immigrant family] include PhDs, factory workers, and office workers; gay and straight people; different religious denominations and political orientations—just like every other American family. We need a legal immigration system as varied and colorful as my modern family, in order to do the job of regulating immigration in 21st Century America. Is a huge challenge, but failure is not an option."

Indeed, with the lives of so many US citizens, green card holders, and their foreign relatives impacted by lengthy separation, there is reason for hope that the family-based immigration system will be reformed. Recent events confirm that the Subcommittee is far from being the only entity concerned about the current immigration system. Politicians, lawmakers, organisations from across the spectrum and individuals have been intensely debating proposed US immigration reforms and how to best achieve meaningful change. For additional information on proposed legislation, please see an earlier blog post on the recently reintroduced Family Unity Bill.

The American Immigration Law Office would be delighted to assist you and your spouse with your US family immigration matter. Contact us today to confidentially discuss your circumstances.