Shall Derivative Family Members Be Counted Against Visa Quotas?

Many immigration law attorneys and advocates argued for many years that USCIS is misinterpreting the statutes in counting visas against derivative family members. There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family-based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states: “A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, 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 INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. While the argument was going on for many years during the Bush and Obama administrations, now they decided to take some drastic steps. 
A group of investors under the employment-based fifth preference (EB-5) have filed a lawsuit, Feng Wang v. Pompeo, and even won class certification. Their main argument is that in every year, except for 2017, the number of derivatives receiving permanent residence was greater than the number of principal applicants, thus resulting in backlogs for China and subsequently Vietnam in the EB-5. If the derivative family members were not counted in the EB-5, the principal applicants would have received conditional permanent residence or green cards by now. 
The EB-5 plaintiffs have focused their argument specifically on the language in INA 203(b)(5), which provides that “visas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise…..in which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers. Thus, plaintiffs argue that INA 203(b)(5) unambiguously provides that 7.1% of the 140,000 employment-based visas shall be allocated to investors who satisfy the EB-5 requirements. Nothing in the language of INA 203(b)(5) provide for the reduction of the allocation of EB-5 visas to spouses and children. Rather, spouses and children, under INA 203(d) will “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.”
The plaintiffs in Feng Wang v. Pompeo also point to the provision in INA 217(f) regarding the removal of conditions for conditional residents to further demonstrate that Congress did not intend to classify the spouses and children of investors as investors under INA 203(b)(5). INA 217(f) separately defines an “alien entrepreneur” who was admitted for permanent residence from the “alien spouse” or “alien child”, who were admitted for permanent residence by virtue of being the spouse and child of the “alien entrepreneur.”
Finally, the plaintiffs also argue that INA 203(b)(5)(B) sets aside 3,000 visas for those who invest in targeted employment areas (TEA), and in exchange, the investor invests a reduced amount. However, since historically approximately two derivative spouses/children accompany each EB-5 investor, investors would be able to use up only the 3,000 visas allocated to TEA investors, even though Congress intended that investors be given a choice to invest in a TEA or in an area outside a TEA.
If the plaintiffs prevail in Feng Wang v. Pompeo, the beneficial impact of the ruling will be limited to EB-5 investors. They have moved for a preliminary injunction based on imminent harm such as children aging and other economic harms. Still, a victory, assuming that the plaintiffs also prevail on appeal, will provide a springboard for EB plaintiffs in other backlogged preferences to file a broader class action. 
Of course, winning on these arguments will not be easy. However, If plaintiffs win, the number of available green cards will double or triple without Congress needing to lift a finger and the waiting lines will vanish or be drastically reduced.