S. 1348's Retroactive Effect On Family And Employment Categories
Not Warranted - A Proposed Solution
By Alan Lee, Esq.†‡
The Secure Borders, Economic Opportunity and Immigration Reform
Act of 2007 (S.1348) proposes to invalidate I-130 relative petition
filings of 5/1/05 and after by eliminating most family-based categories,
and employment based immigration cases which were not filed prior
to the date of the legislation's introduction. The eliminated categories
are slated to be F-1 (single sons and daughters of U.S. citizens
21 and over),
F-2B (single sons and daughters of lawful permanent residents 21
and over); F-3 (married sons and daughters of U.S. citizens), and
F-4 (brothers and sisters of U.S. citizens). One would hope the
date of the bill's introduction will be seen as the latest date,
May 21, 2007, when the Senate actually had the text and began debate,
rather than the earlier May 9, 2007, date of the place holder bill,
the contents of which were scooped out and replaced by the present
legislation.
There are certain factors at play here in chopping off benefits
retroactively which have to do with the timing for Z visa holders
to begin adjusting status to permanent residence (the adjustment
of status phase cannot begin until 30 days after the backlog dates
have all cleared and the current time frame for such to happen with
all the machinations concerning backlog clearance is projected between
8-13 years). S. 1348 is positive in lifting the floor limit for
the pre-5/1/05 preference categories (F-1 to F-4) from its present
226,000-480,000 annual quota to 567,000. It is also tolerable in
the employment based arena in lifting the annual quota from its
present 140,000 to approximately 300,000 (counting the number of
immigrant visas issued in FY 2005 plus the 55,000 transferred from
the to-be-eliminated diversity lottery). However, we strongly believe
that finding more politically acceptable immigrant visa numbers
should be a priority to both strike the need for retroactivity in
the bill and speed the date of adjustment of status for the Z visa
holders.
The Republicans (who came up with the first draft of the legislation)
may justify retroactivity for the family based cases by pointing
out that under the new merit based evaluation system, the eliminated
family class members will receive a certain number of points including
2 for any petitions filed after May 1, 2005. However the category
of "Extended Family" under the new system clearly states
that the points are only to apply if the individuals have already
reached the threshold of 55 points in other categories, which are
basically attuned to higher education, higher degree skills, and
understanding English and civics. There is something distinctly
un-American in the Government's taking away a petition for which
an American or legal permanent resident paid for in the past thereby
crushing the dreams of his or her children or siblings most of who
would probably not qualify under the merit based system. A prime
example of the horrendous effect of this proposed change is children
who have aged out during the process of the family based immigration
of their parents. We have a number of cases in which the parents
were petitioned by their siblings and during the 12 plus years required
for the backlog to clear, the children aged out. Now we have filed
F-2B petitions for the children and informed the parents that it
will take approximately another 7-9 years for them to immigrate
unless the U.S.C.I.S. takes a more generous view of the Child Status
Protection Act. However, under S.1348 as presently written, the
hopes of the parents to eventually reunite with their sons and daughters
and siblings in the U.S. in most cases will be snuffed out.
An even worse situation is presented in the employment based categories
which are to be eliminated except for those who filed immigrant
visa petitions by the date of S.1348's introduction. Those with
pending or approved labor certifications who could not or did not
file petitions by that date would only be able to preserve their
priority dates for use under the new merit based evaluation system.
This is a cruel cut, to say the least. Like many other immigration
lawyers, we still have labor certification applications pending
with the Department of Labor (DOL) from 2002, 2003, 2004 and 2005
because of the incredible backlogs of the DOL and its switch in
March 2005 to an entirely new system, PERM. It is difficult if not
impossible to justify to U.S. businesses and the aliens that they
are sponsoring that all their efforts and expenses over a period
of up to five years have been for naught. A priority date is of
no help if the skill is not listed on an as yet to be named number
of occupations which will be determined by the Government.
Some may point out that many with pending or approved labor certification
applications only may not be impacted as this portion of law will
not come into effect until October 1, 2008, and the cases can be
finished by that date. However, that is a false hope because of
the vicissitudes of labor certification processing, immigrant visa
backlogs, and immigrant visa processing. There is no guarantee of
time as to when the Department of Labor will finish its work on
the backlogged labor certification applications. It originally promised
to be through by September 2006 and now the projected date is September
2007. Immigrant visa backlogs also promise to be a source of concern
because another portion of the bill containing the new numbers is
only scheduled to take effect on the first day of the fiscal year
after the fiscal year that the law is enacted. That means if President
Bush signs the new law into effect on October 1, 2007 (the beginning
of FY-2008), there will be no new numbers until October 1, 2008.
In looking over the current priority dates situation, only in the
month of June 2007 has the employment based third preference moved
up to 2005 for most of the world, but this may only be a testing
of the waters by the Visa Office of the Department of State and
the category may backlog in the near future. In May 2007, that category
was only open to August 1, 2003, for most of the world, August 1,
2002, for China born, and May 8, 2001, for natives of India. An
I-485 can only be filed when the priority date is cleared. Even
if the first two hurdles are overcome, there still remains the problem
of final immigration visa processing. Currently the C.I.S. service
centers list varying processing times between 6 and 11 months for
employment based I-485 filings, not taking into account the many
applications which cannot be processed because of security clearance
problems not of the individuals' making. Going overseas for immigrant
visa processing may not save any or much time because many U.S.
consulates and embassies have long processing times because of understaffing
and increased workload. Under the circumstances, it would be foolish
to believe that many employment immigration cases slated to be eliminated
will be finished before this section of the law takes effect. To
exacerbate the unfairness of the retroactivity, I-485 applicants
will be forced to pay $1,010 to file such an application beginning
on July 30, 2007 under the agency's scheduled fee hike from $395
-- yet the law does not provide that fees that have already been
collected will be refunded in the event that the case is cancelled
because of the changed law.
We believe that the answer lies in finding more numbers in a way
that is politically acceptable so that no one appears to be opening
the floodgates. We recommend recapturing unused numbers from both
family and employment based cases from 2001 to the present. This
should hardly strike anyone as new as it was one of the solutions
brought forth last year in S. 2611, the "Comprehensive Immigration
Reform Act of 2006." The language there was fairly straightforward
in stating that the recapture would be the difference between "(A)
the maximum number of visas authorized to be issued under this subsection
during fiscal years 2001 through 2005 minus the number of visas
issued under this subsection under those fiscal years; and (B) the
number of visas calculated under subparagraph (A) that were issued
after fiscal year 2005. " In a Congressional Budget Office
cost estimate in May 2006 on S. 2611, the CBO stated that the annual
cap for the family based preferences had a maximum of 480,000 and
a minimum of 226,000 and that the annual cap had been set at the
minimum for 9 of the past 10 years including 213,000 preference
immigrants in 2005. The CBO projected that an additional 275,000
family sponsored visas could be awarded each year. Stretching these
figures out over six years would yield approximately 1.65 million
new family based immigrants. For employment based cases, the CBO
indirectly estimated that there were 335,000 unused visas from 2001-2005.
These numbers should be acceptable politically to both parties as
they are not new numbers, but only numbers which were not used in
previous years. The recaptured numbers would be sufficient to cover
a wider range of applicants in both family and employment based
immigration classes than in the present proposal without negatively
affecting the time in which the adjustment of status for Z visa
holders can begin. In fact, use of the numbers would probably allow
that phase to begin even faster than the currently projected 8-13
years.
With these recaptured numbers, the writers of the legislation could
afford to be more generous in their treatment of pending family
based and employment based cases, perhaps changing the language
preserving family based petitions in the targeted family categories
from May 1, 2005, to the date of enactment, and employment based
petitions from the date of the bill's introduction to petitions
and labor certification applications filed by the date of enactment.
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