Thursday, July 26, 2012

A BETTER PHASE-IN PLAN FOR HR 3012

As we mentioned in an earlier blog post this week, the viability of HR3012 hangs in the balance. Congress will work until August 4 and then take a month off. The legislative calendar has some openings in September, although many Senators and Representatives focus will be on their own re-election campaigns and supporting other’s re-election efforts. The close Presidential campaign also means that much political momentum will be drawn away from immigration legislation and toward President Obama and challenger Mitt Romney.

Several comments to this blog have raised the very fair question of why Congress chose to pinch immigrant visa numbers away from the Rest of World in order to equalize the Employment Based categories. It’s a very fair point that has been made. HR 3012’s effect will be to delay EB2 and EB3 visa numbers for non-Indian and non-Chinese natives. It is unclear at this time what it means for Philippine natives, although the best guess is that Philippine EB3 will also be hurt by HR3012’s enactment.

MU Law’s position is that this is unfair and that solving one unfair policy (retrogression dates determined by birth) by creating another unfair policy (delaying approval for scores of applicants who have played by the rules) is wrong. The correct thing to do would be for Congress to guarantee reasonable processing times for all EB-2 and EB-3 visa applicants who presently have approved I-140s.

One way to do this would be to create a better phase-in plan than the current three year phase-in plan. HR’3012’s three year phase-in gradually raises the per-country caps until all EB applications are in the same retrogression schedule. The math on the phase-in is complex. It is nearly impossible to guess where the EB-3 priority dates will eventually settle if HR 3012 becomes law. Adding to the complexity is the real-world fact that no-one, including the Department of State, knows how many of those pending EB-3 applications are still viable.

A better plan would guarantee all EB-2 and EB-3 applicants that their retrogression would not increase as a result of HR 3012. So for instance if a ROW EB-3 has a priority date of September 2008 on the day that HR3012 becomes law, and the ROW Visa Bulletin is September 2006, then that applicant would be guaranteed a green card two years from the date of the enactment of HR3012. This plan would be simple to institute and could be crafted in a way as to not increase visa numbers.

Unfortunately, Congress has chosen to use the three year phase-in, which is more complex and ultimately serves neither constituency. It’s neither fair, nor easily applied.

6 comments:

  1. The fairness is in the simple fact that in the great country of US people are awarded / penalized based on the work they do not based on where they were born. Simply keeping this in mind if the country based provisions are removed it would give an equal base/starting point to everyone. I dont see why you see this as an issue.
    Also any law or legislation is never 100% perfect but it should never be based on where you were born.

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  2. I don't think we're disagreeing. I'm simply saying that it's not far to ROW EB3s who filed petitions to be delayed. Legislation could be crafted that serves both aims -- eliminates per-country quotas which are wrong AND doesn't harm people who have pending petitions and have been basing life decisions on one set of rules, which are now being switched mid-stream.

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  3. MU LAW
    If HR3012 become a law and Eb3 Row is in September 2006,Do you think that at this time EB3Row will be retrogressed or they go forward slowly?My pd is October 2006.

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  4. @k.sh - I honestly have no idea and anyone who says that they do is just guessing. The reason for this is that no-one knows how many EB3 are actually still viable. Many think that a lot of the oldest Indian EB3 visa applicants have long given up their green cards and/or switched to EB2.

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  5. The Fact that India & China people of same caliber are waiting for many years to get Honorable life is ignored by your blog. As the law states that this is all about fairness in giving visa. Just because someone is born in other IC country should not guaranteeing them front in the line ( at least in US). If you want to make line straight ( as this law does) someone has to move backwards but the process would be fairer to each one.

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  6. @Harry - I disagree with your comment. I have commented on the fact that the system is unfair and I have said that the per-country caps should be eliminated.

    In fact, the July 24 blog entry says, "These per-country caps have created a longer processing time for those from high visa-demand countries such as India, China, and to some extent, the Philippines. These per-country caps have been based not on the skill-level of the immigrant, but on the immigrant's country of birth...Congress is right to get rid of them."

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