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With such a long wait, why file a family-based visa petition now?

| Mar 14, 2013 | Firm News |

This blog and other outlets have explained that there is a tremendous wait for family-based immigrant visas subject to strict caps under the current law. Even though the estimated waits can be discouraging, now may actually be the best time to file a family-based visa petition because of the possibility for comprehensive immigration reform.

First, the wait time for petitions filed before a change in the law may well be much less than those filed after. Second, there is a possibility that comprehensive immigration reform will eliminate some family-based visa categories entirely.

Comprehensive reform is more likely to reduce the wait for petitions filed before the law changes.

Both the Senate and Presidential proposals for comprehensive immigration reform require that the existing visa backlogs are cleared before most of the foreign nationals who are here illegally will become eligible for permanent residency. As explained in discussions of the backlog, however, this could take many decades under the current law. Therefore, comprehensive immigration reform will need to include some way to dramatically reduce currently projected wait times for this provision to be reasonable.

Considering the importance of clearing the backlogs to a key part of comprehensive immigration reform, the Senate and Presidential proposals not surprisingly recognize the need to reducing current wait times for immigrant visas. Unfortunately, the proposals do not provide specifics on how that will be done. Clearing the current backlogs, however, does not necessarily mean making permanent changes that will apply to visa petitions filed after changes in the law.

Crucially, the Presidential program indicates that the backlog will be reduced largely through “temporary” measures. Though the Senate proposal is even less detailed, it is also quite likely that they would also have temporary fixes, for example they have not proposed a permanent increase in the family visa caps that caused the delay in the first place.

Placing a greater emphasis on the current backlog combined with a suggestion of temporary measures to reduce waits strongly suggests that petitions filed before comprehensive immigration reform will be treated differently than those filed after. More to the point, it is quite possible that family-based visa petitions filed before comprehensive immigration reform will have a substantially shorter wait than those filed after.

Some visa categories may be eliminated in comprehensive immigration reform.

Ominously, some backers of comprehensive immigration reform have recently suggested possibly eliminating two family-based visa categories altogether: the married sons and daughters of citizens (family-based third preference) and the siblings of citizens (fourth preference). While this suggestion is noteworthy, similar plans have been proposed before.

It should also be noted that there is also very strong opposition to eliminating any visa categories, and the author does not think it likely will occur. Nonetheless, the proposal is being given enough weight that it should not be ignored.

If these categories are eliminated, it would be highly doubtful they would do so retroactively- meaning it is far more likely they would stop accepting new petitions than cancelling old ones. If this happens, it would of course be especially important to file before any new law eliminating these categories takes effect.

It is vital to keep in mind that no one knows if comprehensive immigration reform will actually be enacted, much less exactly what it will include. Therefore, the reasons provided for filing soon are necessarily speculative. On the other hand, there is no apparent reason why it would benefit someone to wait to file a visa petition for a relative. Even if nothing is done to reduce the backlog, getting in line sooner will be better than doing so later.

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