ILW.COM - the immigration portal Immigration Daily

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

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.

2007 Alan Lee, Esq.

About The Author

Alan Lee is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: An Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.