AS AN "IMMEDIATE RELATIVE" OF AN AMERICAN CITIZEN, I CAN IMMIGRATE TO THE UNITED STATES RIGHT AWAY...ALL I HAVE TO DO IS ABANDON MY WIFE AND CHILDREN.
A serious oversight in our immigration laws divides families. It is imperative that this oversight be corrected. If someone is eligible to immigrate to the United States, his (or her) child and spouse is generally permitted to immigrate with him. This is true in most cases, but not all.
If an alien satisfies the requirements of immigrating to United States, his child (under 21) and spouse are given "derivative status" and may immigrate with him. "Derivative status" is provided for spouses and children of immigrants who fall under the preference system for both family based and employment based immigration. However, under the present legislation, no derivative status is provided for spouses and children of "immediate relatives." An "immediate relative" is the spouse, parent or child of an American citizen (who is over the age of 21 if petitioning his parents).
Dinorah M. is a twelve year old national of Mexico who suffers from diabetes. She has resided in the United States since the age of four. She has three older siblings who are American citizens. Her parents are in the process of immigrating to the United States. Due to the legislative oversight referred to above, Dinorah is not eligible to immigrate with them. In fact, the government is seeking to "remove" Dinorah from the United States. Dinorah's parents are the "immediate relatives" of Dinorah's older brother, who is an American citizen. As an American citizen over 21 years old, Dina's brother was able to file an "immediate relative"petition on behalf of his parents. Since the current statute provides no derivative status for spouses and children of "immediate relatives," Dinorah may not immigrate with her parents. (Dinorah's brother could file a visa petition for Dinorah, but because of backlogs, it would take over ten years until Dinorah could immigrate.)
We recently researched this issue to see if there was any reason our laws do not provide "derivative status" for spouses and children of "immediate relatives." We could not find any. In fact, the leading treatises on immigration law also suggest that the problem is the result of oversight. "Possibly because of an oversight in the statute, the exemption from numerical restrictions extends only to the immediate relative, and does not confer derivative immediate relative status on the family of the immediate relative." Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 36.01 (rev. ed. 1998). "Surprisingly, some spouses and children are not derivative beneficiaries. Derivative beneficiaries do not include the spouses and children of immediate relatives..." Ignatius, Stickney, Immigration Law and the Family § 2.08 (rev. ed. 1999).
Clearly, legislation needs be enacted to correct this oversight. We would respectfully suggest that this legislation be called "DINA'S LAW" and state something to the effect of:
Section 201(b) of the Immigration & Nationality Act is hereby amended by adding Subsection (3) which states as follows: A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (1) and (2) be entitled to the same status, and the same order of consideration provided in the respective subsection if accompanying or following to join, the spouse or parent.
SUPPORT DINA'S LAW: CONTACT YOUR SENATORS AND REPRESENTATIVES IN CONGRESS. Our immigration laws are not perfect. Let's improve them. One way to start is by correcting the obvious oversights.