As I reported before, a group of Chinese investors under the EB‑5 immigration program have challenged the government’s illegal practice of counting spouses and minor children of investors against the immigration quota for investors. This practice, however, hurts all legal immigrants because the same provision governs the admission of derivatives of all legal immigrants. Counting derivatives dramatically reduces legal immigration, harming people trying to immigrate legally to the United States. The government finally responded to the lawsuit on Friday, and its response leaves much to be desired.

Background

Section 203 of the Immigration and Nationality Act (INA) provides three broad pathways for legal immigrants to receive green cards (i.e. permanent residence):

(a) Preference allocation for family-sponsored immigrants.—Aliens subject to the worldwide level specified in section 201(c) of this title for family-sponsored immigrants shall be allotted visas as follows …

(b) Preference allocation for employment-based immigrants.—Aliens subject to the worldwide level specified in section 201(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows …

(c) Diversity immigrants… aliens subject to the worldwide level specified in section 201(e) of this title for diversity immigrants shall be allotted visas each fiscal year as follows …

Subsections (a), (b), and (c) of section 203 do not make the spouses and minor children of the family members, employees-investors, or diversity lottery winners eligible for status. It is only subsection (d) that creates an opportunity for them to immigrate:

(d) Treatment of family members.—A spouse or child… shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), 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.

Nothing in subsection (d) of section 203 applies the “worldwide levels” (or quotas) under subsection (a), (b), or (c) to the spouses and minor children of immigrants. They are then presumptively not subject to those limits.

The Government’s Argument

1) “Although the Court’s analysis should begin with the INA’s text, the meaning the Court ascribes to the statutory text must reflect the statute’s ‘context.’” -P. 19

The most incredible thing about the government’s response is that it explicitly eschews any effort to explain its practice using the language of section 203(d). I expected them to make the incorrect argument that because an immigrant has the “same status” as another immigrant, they are both subject to the same quota. But this is obviously false, for reasons I explain here. Adult children of U.S. citizens are subject to a quota under subsection (a) of section 203, while minor children are not subject to a quota under section 201(b), yet both receive the same immigrant status. What matters is not the status an immigrant has, but under which provision they receive that status—one with a cap or one without a cap. Yet this bad argument is better than what the government argues in its response, which is nothing at all.

2) “Section 203(d) is a means by which a derivative spouse or child can obtain a visa under their principal’s applicable category in Section 203(a), (b) or (c).” Emphasis added, P. 22

This is as close to an explanation as the government gives for its interpretation. It is asserting that dependents don’t receive status under subsection (d) of section 203 which has no quota, but under subsections (a), (b), and (c) which do have quotas. Yet it provides zero textual support for this view. In fact, the investors’ brief (p. 17) cites several provisions where Congress explicitly describes dependents as receiving status under subsection (d): 8 U.S.C. 1101(a)(15)(V); 8 U.S.C. 1154(l)(2)(C); 8 U.S.C. 1186b; 8 U.S.C. 1255(i)(1)(B); and Public Law 107 – 56.

3) “The country cap also explicitly applies to derivatives, as stated in INA section 202(b).… And since the country cap is a subset of the overall family and employment-based caps, then equally clearly, if the country cap applies to derivatives, then so too do the overall caps” ‑Pp. 25–26

There are two types of immigration quotas: 1) “worldwide levels” that limit the absolute number of immigrants, and 2) “per-country” levels that limit the share of the worldwide level that a single nationality can receive. Section 202 of the INA does mention rules for counting some spouses and minor children against the per-country limits, but it never references spouses and minor children admitted under section 203(d). That is notable because subsection (d) of section 203 explicitly describes two types of spouses and minor children—those entitled to status under subsection (d) and those “otherwise entitled to immigrant status… under subsection (a), (b), or (c).”

This second group includes, for example, certain special immigrants under subsection (b)(4). The reason that spouses and children of these special immigrants are counted against the limits is that they are part of the definition of a special immigrant (see section 101(a)(27)). That means that these derivatives have to be counted because they receive status, not under subsection (d) of section 203 which has no cap, but under the capped sections of section 203. Under the government’s view, these provisions that include spouses and children as part of the definition of special immigrants serve no purpose at all, which violates a basic cannon of statutory interpretation. The government is attempting to confuse the two types of derivatives in order to save its erroneous interpretation.

4) “Congressional intent is further demonstrated by the fact that when Congress exempts derivative spouses and children from an applicable numerical cap, it almost always does so explicitly.” ‑P. 38.

This statement is the opposite of the truth. In support of its statement, it cites a number of categories of nonimmigrants (H‑1Bs, H‑2Bs, H1-B1s, E‑3s, Ts, Us) and special immigrant Iraqis and Afghanis, but in almost every one of its cases that it cites, the spouse or child is part of the definition of the eligible category. For example, H‑1Bs are defined in section 101(a)(15)(H) as “an alien… who is coming temporarily to the United States to perform services… in a specialty occupation… and the alien spouse and minor children of any such alien.” In other words, spouses and children start out eligible, and so subject to the quota, so if Congress wanted to exempt them, it had to do so explicitly. But in section 203, spouses and children start out ineligible, and so not subject to a cap, and are separately made eligible under subsection (d), which has no quota so there is no need to explicitly exempt them.

In every comparable case, where the spouses and children start out ineligible and then separately are made eligible, Congress specifically required them to be counted. The Refugee Act of 1980, section 207 of the INA, has a directly comparable provision. Spouses and children are not eligible under the definition of a refugee under section 101(a)(42) and so not subject to the cap on refugees in section 207(a), but section 207(c)(2)(A) makes them eligible, and when it does so, it explicitly states, “Upon the spouse’s or child’s admission to the United States, such admission shall be charged against the numerical limitation …” In other words, exactly the language that isn’t in section 203(d).

5) “There is a particular reason why Congress would have specified derivative counting in this way in the Refugee Act: unlike the caps at issue in this case, which are set by statute, the refugee cap is established by the President. Thus, the specific derivative provision is a deliberate check on the very broad authority that Congress had otherwise delegated to the President in the Refugee Act.” -P. 40

This explanation simply doesn’t work for the government. Why would Congress need a special “check” on his authority to not count derivatives if, on the government’s theory, the statute requires them to be counted to begin with? It doesn’t make any sense.

6) “Plaintiffs point to a single allegedly contrary provision in the Refugee Act of 1980.” ‑P. 39

This is just false. The investors’ motion also cites three other directly comparable instances, all of which were enacted at the exact same time as section 203 in 1990 (pp. 21–22). These provisions provided green cards to Hong Kong employees, displaced Tibetans, and transitional diversity visa applicants. In each case, Congress created the category for principal applicants and separately created the eligibility for their spouses and minor children using almost exactly the same language as section 203(d). But in 1991, it amended each provision to require that spouses and children be counted against those quotas. Did the government not actually read the motion or did it misrepresent it?

7) “The 1990 Act contained exactly the same language as the 1965 Act.… When Congress repeats language with a well understood construction in a new statute, it is presumed to intend to continue that same construction.” ‑P. 23

This is also false. Under the Immigration Act of 1965, derivatives were explicitly required to be counted, being listed in a subsection that began “Aliens who are subject to the numerical limitations specified in section 201(a) shall be allotted visas … as follows:”. The last category was a “spouse or child” of a primary applicant. In 1990, spouses and children became their own subsection, not included in the categories subject to the worldwide limits. The government’s claim is simply untrue.

8) “Plaintiffs contend that the restructuring of Section 203 in the 1990 Act had huge substantive effects by taking EB‑5 investors’ spouses and children… completely out of the preference system altogether.”

This is again false. Spouses and children of investors are still part of the preference system as their eligibility is tied to their parents or spouses, and they must wait alongside them. They cannot simply enter “outside the preference system.”

9) “Not once in the thirty years since the 1990 Act was passed has any court ever interpreted the INA in the way Plaintiffs now claim Congress intended all along.” -P. 35

First, the EB‑5 backlog didn’t exist until 2014, so they never would have had standing to sue prior to then. Second, this isn’t the first time that the government has been caught miscounting green cards years after it implemented the policy. The Johnson, Nixon, and Ford administrations interpreted the Cuban Adjustment Act of 1966 to count Cubans against the immigration quotas, and almost a decade after the bill’s passage, the Ford administration was sued, and it admitted in court that it was wrong to count them all along. The fact that a practice has occurred for many years does not mean that the practice is correct.

10) “The D.C. Circuit has cautioned that ‘legislative posturing serves no useful purpose …’ … The isolated floor statements that Plaintiffs cite thus carry little weight in constructing the meaning of the INA’s provisions respecting counting derivatives towards the annual allotments of EB‑5 visas.” ‑P. 33

The government dismisses evidence that I reported on here that clearly indicates that members of Congress explicitly expected that the EB‑5 program would admit 10,000 investors, not 3,500 investors and 6,500 derivatives. Some members explicitly described the process through which they envisioned spouses and children entering. While the government is correct that this shouldn’t trump the text of the law, it doesn’t—it reinforces what is already there. The government responds by citing an ambiguous conference committee report on the final bill that does not contradict the floor statements of the members and does not explicitly explain how it deals with the issue of derivatives. This could be because the conference committee was just as interested in determining the outcome of the bill as those individual members and didn’t want to lose members by stating one way or another.

11) “No legislative history even remotely supports the proposition that Congress meant to exclude all derivatives from applicable caps …” ‑P. 34

This is also false. As explained above, in the Immigration Act of 1990, Congress enacted provisions providing green cards for Hong Kong employees, displaced Tibetans, and transitional diversity visa applicants using the same language as section 203(d). In 1991, Congress amended the 1990 act to explicitly require counting of spouses and minor children of the principals. Here is an example with the change in bold:

(a) In General.–Notwithstanding the numerical limitations in sections 201 and 202 of the Immigration and Nationality Act, there shall be made available to qualified displaced Tibetans described in subsection (b) (or in subsection (d) as the spouse or child of such an alien) 1,000 immigrant visas in the 3‑fiscal-year period beginning with fiscal year 1991.

…

(d) Derivative Status for Spouses and Children.–A spouse or child … shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under this section, be entitled to the same status, and the same order of consideration, provided under this section, if accompanying, or following to join, his spouse or parent.

If derivatives were already required to be counted against the quota, it would not have needed to insert any language into this provision, but it did anyway, making its interpretation of this language manifest to all. Congress made this amendment in every relevant place except one: subsection (d) of section 203. This is as close as it gets to positive proof of Congress’s interpretation of the statute.

Conclusion

In summation, the government provides no theory at all of how the plain language of the statute requires counting. Its indirect textual evidence falls flat and even contradicts its claims, and it repeatedly misstates the legislative history. The government concludes by fearmongering about how much legal immigration would increase if it were forced to implement the statute Congress actually passed. But legal immigration isn’t scary, and even it were, it is even scarier to allow the government the power to amend the laws without Congress.