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Which Greencard Line? Scrutinizing the “Back of the Line” Debate

Invariably, every discussion about immigration reform involves rhetoric about getting in the “back of the line” when talking about obtaining legal permanent residence (aka greencard).  The false assumption in these discussions is that there is one long line in which foreign nationals can simply “wait their turn” in order to be approved for a greencard.

Ask any immigration practitioner and they will tell you there are many lines, and sometimes, no line at all, in which to get behind.  Some lines have no waiting while other lines have a waiting period that exceeds a decade (or two)!  For some foreign nationals, they would never qualify for a greencard for one reason or another.  Not convinced?  Take the greencard maze quiz here.

Attorney Angelo Paparelli, Partner at Seyfarth Shaw LLP, wrote that the line was “Too Damn Long (and Slow).”  In his article, he dispels this myth of “getting in the back of the line” which has, unfortunately, been propagated by many politicians alike in predictable immigration reform rhetoric.

In fact, the long waiting periods have sprung up flowchart memes that have confused and unintentionally obfuscated how legal immigration works.  Watch how Rachel Maddow discusses these issues here. Arguably, the waiting period for greencards, or more eloquently coined the “visa backlog” is probably the biggest factor contributing to illegal migration to the U.S. for family-based immigrants.

Mr. Jesse Lloyd, of Bean + Lloyd, LLP, immigration attorneys based in Oakland, California, recently wrote a detailed article offering a primer on the visa backlog plaguing our legal immigration system.  Mr. Lloyd explains that the U.S. Department issues only 226,000 visas for family-based immigrants each year.  Demand is usually higher than the annual visa quota, hence the backlog.  Further contributing to the “long lines” is the fact that nationals of certain countries, like the Philippines or Mexico, who have historically high immigrants to the U.S., must wait in even longer lines. The challenge with the current backlog is how the current wait time is being tabulated by the Department of State.  Mr. Lloyd indicates that “that the current priority dates reflect how the lines moved in the past, not how they will move in the future.”  To obtain a more accurate reflection of realistic wait times, the Department should focus on “how many people are still [currently] waiting, not how many people those in the front of the line waited for.”  Mr. Lloyd offered an simple analogy:

Think about a line in a bank. If you get in line, and there are nine people in front of you, then you are tenth in line. It does not matter if the person at the teller now had to wait in front of two people or twenty-two, you are still tenth either way.

So how should Congress approach the issue of reducing (and eliminating) the visa backlog?  President Obama’s recently leaked immigration bill to USA Today indicated an eight-year path to permanent legal residency for unlawful immigrants.  Does his proposal comport with his Las Vegas speech?

We’ve got to lay out a path — a process that includes passing a background check, paying taxes, paying a penalty, learning English, and then going to the back of the line, behind all the folks who are trying to come here legally.  That’s only fair, right?  (Emphasis added.)

Insofar as Congress can come up with managing and effectively reducing the current visa backlog, can any realistic mechanism to legalize 11 million undocumented immigrants become reality?  Further, Congress hasn’t even evaluated the logistical feasibility, including appropriating financial and human resources to manage this many applicants, on top of the existing pool of pending, legal applicants for legal permanent residence. Some House Members considered abolishing certain family preference categories all together in order to reduce the visa backlog. As practitioners, how have you dealt with explaining the visa backlog to potential immigrant visa applicants?  What solutions could Congress seriously entertain in order to effectively reduce and eliminate the visa backlog?  We’d love to hear your comments and suggestions.