“What Happens to My Petition if the Law Changes?”

This is a big question right now.

For weeks the White House has been pushing to eliminate some immigrant relative categories.  They instead want a “merit-based” immigration system.  In addition, newly-proposed legislation would also eliminate several family categories.

For many decades the U.S. immigration system allowed petitions to be filed for many different relatives, with some of these foreign relatives placed on a waiting list before they can become Permanent Residents.


I do not usually comment on “proposed” laws.  Whenever a law is proposed, the final law, if there ever is the same as what was first proposed.  But, since what is being suggested is such a major change, and so many of our clients are concerned about what they are hearing in the news, I will break with tradition and discuss these frequent questions:

If the law changes and my family category is eliminated...


       -What happens to my already approved petition?


        -What happens to the petition that I already filed and is pending?


        -Should we hurry and file petitions for our family now?


First, look at what we have now.  Petitions can be filed for the following relatives:

• Spouse of a U.S. Citizen  (no waiting period)
• Parent of a U.S. Citizen  (no waiting period)
• Children (unmarried and under 21) of a U.S. Citizen (no waiting period)
• Unmarried sons and daughters of a U.S. Citizen  (long wait)
• Married sons and daughters of a U.S. Citizen  (long wait)
• Spouse of a Permanent Resident (after short wait)
• Children (unmarried and under 21) of a Permanent Resident (short waiting period)
• Unmarried sons and daughters of a Permanent Resident  (long wait)
• Brother or Sister of a U.S. Citizen (very long wait)

What might change?

There are no certain answers.  No one can tell you what will happen until a new law is passed.  No one can tell you what a new law says until the day it is passed.  Proposed laws constantly change right up to the time they are voted on by both the House and Senate.  Everything I write below this is pure speculation.

Current rumors and proposals would eliminate these categories:

• Parent of a U.S. Citizen
• Unmarried sons and daughters (over 21) of a U.S. Citizen
• Married sons and daughters of a U.S. Citizen
• Unmarried sons and daughters of a Permanent Resident

Brother or Sister of a U.S. Citizen

What might happen to the petitions?

In the past when a new law eliminated certain benefits, cases pending when the law changed would usually be allowed to continue to completion.  We have seen this many times in the past.  A good example of this, although it involved a ‘policy’ and not a ‘law’, is the recent termination of the DACA program. Applications pending on the day of the announcement were allowed to continue and applicants received the benefits from their application.  The reason for this practice is because it is the only right and fair action for the government to take. 

Any attempt to just sharply announce a retroactive termination of a program, after people have already correctly followed the rules and spent their time and money, would result in a flood of legal suits to compel the government to honor the old rules for pending cases.  Additionally, USCIS does not like to refund money.

New laws that change current laws will usually contain “transition rules” that describe how the changes will be made.  The transition rules explain how the government plans to honor old requests while moving to a new system.  One would expect this if immigration laws undergo a major shift.  But remember, this is all speculation!

Should I hurry and file petitions for my family now?

This is a choice everyone must decide for themselves.  IF the law changes, and IF petitions filed before a law change are still honored, then filing now will have been very smart.  The worse that can happen is you waste some money, but this is true for any petition that is filed when there is a multi-year waiting list – you never know if the relative will decide to immigrate when a visa becomes available.

Again, there is no new law.  Nothing has changed.  This is just my advice to those who are concerned with a future potential change.  But just to be safe, my office is moving all of these relative petitions to the top of the work pile for quick preparation and filing!

 
          IMMIGRATION LAW



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“PERM” Appeal Win Will Benefit Some Filipino Teachers

A three judge panel of the federal Board of Immigration Appeals (BALCA)  has granted an appeal filed by Austin &Ferguson, LLC, overturning the Department of Labor’s (DOL) repeated denials of PERM applications involving job positions with multiple jobs available.

This expansion of PERM requirements, here involving Filipino school teachers, will make it easier for some school districts to comply with the PERM regulations and request permanent residence for its teachers.

The problem faced by many school districts, and also by some other quasi-governmental employers, is that the administrative hiring process often take longer then it does for most private companies.  This delay in making final hiring decisions can cause the PERM application to be filed before a final employment decision has been made for each and every job applicant.  The result of the premature but necessary PERM filing was usually a denial of the application by the Department of Labor.

When a job position has been advertised for multiple openings, this new BALCA decision now requires DOL to approve some PERM applications even if hiring decisions have not been made for all of the applicants.  However, the employer must now show that even if they hired these ‘undecided’ applicants, there would still be a job position available for the foreign-born workers. 

While often it is strategically decided to bypass a PERM denial by just filing a new PERM application, we allowed this appeal to continue in an attempt to highlight the unfairness of this DOL requirement.  As a result, this decision will be of help to the many school districts around the country whose lengthy administrative hiring requirements have hampered their attempts to obtain permanent residence for their Filipino teachers.

 
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