Understanding the New Immigration Bill

By Lourdes Santos Tancinco
Philippine Daily Inquirer

 0share42 32

Applicants for green cards based on employment petitions may not have too many reasons to be elated by the immigration bill recently passed by the United States House of Representatives on Nov. 30. For one, they may experience more delays if the recent bill is passed into law.

The Fairness for High Skilled Immigrants Act (FHSIA), proposes to (1) eliminate the numerical limit for employment-based immigrants and (2) increase the per-country limit for family-based petitions. But what is the actual impact of this bill to aspiring Filipino immigrants to the US?

The Visa Allocation System

The US Department of State allocates only a certain number of visas each year as provided by law. Each country is allocated a cap of seven percent of the total number of visas available. For the family-based petition, if there are 226,000 available visas for a given year worldwide, each nation is allocated seven percent or 15,820 visas.

Overflow visa petitions result in backlogs—meaning a long wait for those countries which file more petitions.

India, China, Mexico and the Philippines are among the many countries that suffer severe backlogs in visa petitions. Filipinos suffer the most backlogs in family petitions especially the fourth preference  petition on behalf of brothers or sisters where wait can be as long as 23 years.

In employment petitions, Filipinos experience backlogs in third preference petitions where the wait can be as long as six or seven years. These include petitions on behalf of professionals like nurses, physical therapists and engineers.

It is important to note that nationals of India and China suffer the most backlogs in employment petitions while Philippines and Mexico are the countries which have the most backlogs in family petitions.

The Proposed Changes

The new bill was passed by the House on Nov. 30. It is not yet a law until it is also approved by the Senate and signed by the President. One of the proposals is to eliminate the cap on numerical limitations on employment-based immigrant visa petitions. The seven percent cap for each country will gradually be eliminated without increasing the total available visas. The effect of this is that the countries with the most backlogs, such as China and India, will be eased of the longer wait. This will result in non-backlogged countries to experience temporary retrogression while China and India’s backlog problems are addressed. This is the reason why the bill is seen as favoring nationals only from China and India and not the Philippines.

The Family Based Visas

Of course the Philippines and Mexico will be favored by the provision that will increase the cap for family petitions. But note that only caps on employment petitions are eliminated. Family based petitions will still maintain the per country quota but the quota will be increased from seven to 15 percent.

If FHSIA or HR 3012 is passed into law, the backlog in family petitions of Filipinos will be reduced. Priority dates will be advanced, especially for first and second preference petitions. The 23 years wait for fourth petitions may be reduced but it is too soon to determine how fast it will advance.

Too Early to Rejoice

The FHSIA bill is seen as a small step in the right direction. But it simply re-arranges the order of the greencard application queue and averages the amount of time between green card backlogged countries and non-backlogged countries. For those awaiting for their visa petitions to be processed, it is too early to rejoice the passage of FHSIA. If eventually, it passes into law, Filipino visa applicants will win some and lose some in the process.

Reeves: Re-entry problems

• More|

By Robert L. Reeves

More Sections

• Local News
• Opinion
• Business
• Sports
• Feature
• Lifestyle
• Entertainment

THE ability of non-citizens to reenter the United States after traveling abroad is an area of immigration law that is widely misunderstood. Many lawful permanent residents believe that a green card guarantees their re-admission to the US. Similarly, many permanent resident applicants also believe their pending application for a green card guarantees their admission. Travel abroad and re-entry is not always trouble-free.

All persons seeking re-admission to the US are subject to inspection. If the non-citizen is determined to be inadmissible, that person may be denied admission and may be ordered removed to his or her home country. Non-citizens should possess a valid, unexpired travel document. Three of the more common types of travel documents issued by the US Citizenship and Immigration Service (USCIS) are:

Have something to report? Tell us in text, photos or videos.

Advance Parole: Advanced parole is issued to applicants who have a pending application for adjustment to permanent resident of status. The issuance of an advanced parole travel document allows the applicant to depart the US while their application is pending with the USCIS.

However, advanced parole does not always guarantee re-admission to the US. The most common problem is that non-citizens may be triggering a three or 10-year bar by departing the US if they have overstayed their visa by more than 180 days in the US.

The bar applies even if the applicant was granted advanced parole.

The Department of Homeland Security may allow the intending immigrant to re-enter the US but it will also require a waiver for the unlawful presence bar. This waiver will only be granted if the applicant is able to demonstrate that his or her inability to live in the United States will result in extreme hardship to a qualifying relative (a parent or a spouse) who is either a United States citizen or lawful permanent resident. The applicant’s child is not a qualifying relative. Returning applicants are not “admitted,” but only paroled into the US. If the parolee is required to appear in immigration court, the parolee has less rights than applicants who were admitted.

Non-citizens should understand that by departing the US prior to the issuance of their green card can otherwise affect their application, despite the obvious benefits of advanced parole.

Re-Entry Permits: Permanent residents or green card holders often desire to remain outside the US for an extended period of time. They may wish to do so for a variety of reasons, including attending school, working abroad, or caring for an elderly relative. Despite their prolonged absence, residents may have every intention of returning and living in the US. However, extended travel is generally only possible with a re-entry permit.

The re-entry permit will allow a resident to remain outside of the US for up to two years without the fear of losing their green card. This travel document must be applied for in the US before departing the US and is usually granted for a two-year period of time.

Returning Resident Visas: A special immigrant returning resident visa (SB-1) may become necessary if the resident has failed to previously acquire a re-entry permit or has stayed beyond the expiration on the re-entry permit. It is issued by consular officers at a US embassy and consulate abroad but will only be issued if the resident is able to clearly demonstrate that he or she always maintained the intent to reside in the US. Returning residents must also show that the cause of their protracted stay out of the US was beyond their control. Consular officers are sometimes reluctant to issue a returning resident visa because they believe that residents should have applied for a travel documentation prior to departing the US.

Re-entry after traveling abroad requires proper travel documents. Green card holders and applicants for permanent resident must be aware of the limitations of the applicable travel document and the problems inherent in the re-entry process.