Applicants for green card based on employment petitions may not have good reasons to be elated by the bill that was recently passed by the U.S. House of Representatives on November 30, 2011. 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 limitation for employment based immigrants and (2) increase the per-country limitation for family based petition. But what is the actual impact of this bill to aspiring Filipino immigrants bound for the U.S.?
The Visa Allocation System
The U.S. Department of State allocates only certain number of visas each year based on what is provided by law. Each country worldwide is allocated a cap of 7% 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 7% or 15,820 visas. On the other hand, there are140,000 employment-based visas annually which are allocated a maximum of 7% or 9,800 visas per country.
If there are more visa applications filed, the quota for each nation is easily filled. Overflow visa petitions result in backlogs causing retrogression. This means that there is a longer 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 petition where the wait can be 23 years. This refers to petitions by U.S. citizens on behalf of brothers or sisters. In employment petitions, Filipinos experience backlogs in third preference petitions where the wait can be as long as six or seven years. These third preference petitions include petitions filed 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 Fairness for Highly Skilled Immigrants Act or FHSIA (H.R. 3021) was passed by the House on November 30, 2011. 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 imposed per country 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. However, in the transitional rules, this is going to be done at the expense of non-backlogged countries which will experience retrogression while China and India’s backlog problems are addressed. More visas will be allocated to countries with the most backlogged petitions. 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 Philippine nationals.
The Family Based Visas
While China and India’s nationals are favored by the elimination of the cap on employment immigrant petitions, Philippines and Mexico will be favored by the provision that will increase the cap for family petitions. Note that only caps on employment petitions are eliminated. Family based petitions will still maintain the per country quota but the proposed change is that the quota will be increased from 7% to 15%.
If FHSIA or HR 3012 is passed into law, the backlog in family petitions of Filipinos will be reduced. Priority dates will be advancing 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. It is a bipartisan bill on immigration, which is rarely seen these days because of the high U.S. unemployment rate. The reason for the strong support of the passage of this bill is that there is no provision for the increase of visa numbers. It simply re-arranges the order of the green card 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 expect to win some and lose some in the process.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
