Legislative Solution: Stop Counting “Derivatives” Against Worldwide Immigration Caps

This memo provides a brief outline of one simple legislative solution for substantially increasing legal immigration to the United States: ending the State Department’s policy of counting “derivatives” against the worldwide caps for preference immigrants.


Current Statutory Framework for Visa Number Allocation

  • Section 201 of the INA (8 U.S.C. § 1151) establishes the worldwide quota of immigrant visas for family-based and employment-based immigrants.
  • In turn, sections 203(a) and 203(b) of the INA (8 U.S.C. §§ 1153(a) and 1153(b)) define the family-based and employment-based categories. The provisions also state what share of the worldwide quotas each category is allocated.
  • Finally, section 203(d) of the INA (8 U.S.C. § 1153(d)) says that the spouses and children of immigrants who qualify under the family-based or employment-based preference categories are “entitled to the same status and the same order of consideration” as the principal immigrant.
  • Under the Department of State’s current interpretation of the law, spouses and children (“derivatives”) who immigrate to the U.S. under section 203(d) use up visas from the worldwide quota. For example, if an EB-5 investor immigrates to the U.S. with her spouse and two children, the family will use up four visa numbers from the (roughly) 10,000 EB-5 visa numbers Congress allocated under 203(b)(5).
  • Under this interpretation, most visa numbers are used up on family members rather than the immigrants who actually meet the criteria Congress established. And the interpretation has created extraordinary backlogs in multiple family and employment preference categories. For example, in the EB-5 category the intention was to provide 10,000 visas to investors to create 100,000 jobs. At present only approximately 3300 investors enter the U.S.. The remainder go to their families. As a result of the backlogs, the purposes of various programs to attract the best candidates has been subverted and has distorted immigration from certain countries. For example, in EB-5 the legislative goal has been undermined because investors from several countries have such severe backlogs that they are unlikely to invest in the U.S. in the future.
  • Most importantly, it is a mechanism for granting substantial numbers of deserving investors and others in the employment and family based categories without giving preferences to particular countries as would the elimination of the country quotas.

Potential Legislative Fix

  • Congress could substantially mitigate the backlogs across all employment and family preference categories by clarifying that the spouses and children of preference immigrants do not “use up” visa numbers.
  • One simply way to accomplish this would be to add a sentence to section 203(d) which states something like the following: “A spouse or child who is accorded immigrant status pursuant to this subsection shall not be subject to the numerical limitations of section 201 of the Act.”