Wealthy Investors Can Still Secure Green Cards; Major Green Card Shift from Those that Keep Families Together to Those for Foreign Employees of U.S. Companies
Yesterday, President Trump issued a proclamation that fundamentally restructured immigration law in place since 1952, at least for the next 60 days or longer if the proclamation is extended, as contemplated in the proclamation.
For almost 70 years, with some minor amendments, the Immigration and Nationality Act has strongly favored family unity with multiple tiered preferences so that U.S. citizens and lawful permanent residents could permanently live together with their close family members in the U.S. At the top of this preference system are spouses, children under 21 years of age, and parents of U.S. citizens with no numerical limit for green cards. Other preferences, but with numerical limits, include children of U.S. citizens 21 years of age or older, spouses and minor children of lawful permanent residents (green card holders), as well as siblings of U.S. citizens.
A similar preference system with numerical limits was developed for skilled employees of U.S. companies that was last restructured in 1990 when a green card preference for wealthy investors was also created.
In the President’s proclamation, every one of these family and employment preferences was altered, some much more than others, with one exception — the preference for wealthy investors with $500,000 or $1 million survived intact.
The proclamation fundamentally alters the Congressionally-mandated structure of our immigration system by barring green cards for:
- Parents of U.S. citizens not already in the U.S., which represents more than half of the green cards issued to parents of U.S. citizens in fiscal year 2018;
- Adult children and siblings of U.S. citizens not already in the U.S., which represents the vast majority of green cards issued to adult children and siblings of U.S. citizens in fiscal year 2018; and,
- Spouses and children of lawful permanent residents not already in the U.S., which represents the vast majority of green cards issued to spouses and children of lawful permanent residents in fiscal year 2018.
The elimination of green cards for the family of U.S. citizens means that these green cards, if this proclamation continues and the green cards are not allocated in this fiscal year, would under current law be reallocated to benefit employees of U.S. companies inside the U.S.
Moreover, because the vast majority (approximately 80%) of employees of U.S. companies are already inside the U.S. when they seek green cards, existing systems for obtaining green cards remained largely untouched by this proclamation. Therefore, foreign national employees of U.S. companies will see little change and continue to obtain green cards. The opposite is true for numerically-limited family based green cards with the vast majority processing green cards from abroad, which is barred by this proclamation.
In addition to this fundamental shift of permanent legal immigration from family unity to foreign national employees of U.S. companies and wealthy investors, the proclamation also bars green cards for foreign nationals outside the U.S. from under-represented nations in our immigration system. The largest group of these green cards — diversity visas — went to Africans in fiscal year 2018.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “The proclamation strongly tilts the immigration system away from keeping families together while favoring foreign national employees of U.S. companies and wealthy investors. This has been done with a stroke of a pen and without a single act of Congress, thereby fundamentally changing decades-long immigration preferences established by Congress. Indeed, the U.S. Senate rejected in 2018 a proposal that tracks very closely with the policy changes in the President’s proclamation and it failed to get a simple majority, even in the Republican-controlled Senate. Moreover, the proclamation alters every single preference in the immigration system, some much more than others, with one clear exception — green cards for wealthy investors — a program that appears to benefit the President’s son-in-law, Jared Kushner, through his family’s company and which has been the subject of SEC investigation.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said, “The COVID-19 pandemic is already here and has infected nearly a million Americans. Issuing immigration proclamations that prevent families from being together will not change that. Let’s be clear, the proclamation is not about protecting American workers. It’s about diverting attention from Trump’s epic failure on COVID-19 to his favorite scapegoat — immigrants and immigration. The Trump administration should focus on preventing the further spread of COVID-19 by providing states with the resources they need to stop the spread of the virus, including access to testing for all Americans, not political proclamations that suspend family and diversity immigration while protecting rich investors.”