11/06/2005: S. 1932 and Spouse and Children of EB Beneficiary
S. 1932 provides that the immigrant visa for the accompaning or following-to-join deriavative beneficiary spouse and children of EB direct beneficiary should not be counted in EB annual cap. Some people question that since the system must draw the visa numbers from somewhere for the spouses and children, where the visa number will be drawn. This question is derived from misunderstanding of the immigration quota system. Under the current immigration system, all the employment-based immigrant petitions fall under the preference categories and in that regard are subject to the quota system. However, when it comes to the family-based immigration systems, the immediate relatives (spouses and children, and parents) of a U.S. citizen are not subject to the quota system and the U.S. government can issue green cards for these beneficiaries without any limitation in numbers. A similar concept will apply to the spouses and children of EB applicant under S. 1932, but the difference is that in the case of the spouse or children of EB direct beneficiary, unless the direct beneficiary's I-140 petition is eligible, their spouses and children will not be able to submit I-485 applications. Besides, unless the direct EB beneficiary's I-485 is first or simultaneously approved, the U.S. government will not be able to approve their I-485 applications. Accordingly, they remain "derivative" beneficiaries whose fate will depend on the direct beneficiary's eligibility and approval of the green card. The spouses and children thus cannot obtain the green card approval as separately from the direct beneficiary's immigration proceeding. In the following-to-join context, their applications may be processed after the direct beneficiary's I-485 is approved, but again the direct beneficiary's I-485 approval is basis for the family members' application and approval. In this regard, they will be indirectly subjected to the preference visa quota system in that unless the direct beneficiary's I-485 is approved after he/she gets his/her visa number current in the Visa Bulletin, their (spouses and children) I-485 applications will not be approved either. It is just that their applications would not take out visa numbers from the specific preference category quota and nothing more. This issue is discussed in Q&A 98, but we are reposting it in view of the widespread confusion in the immigrant community.
11/06/2005: S. 1932 and Consular Immigrant Visa Proceeding vs. I-485 Application Proceeding
People must understand that the provision in the S. 1932 that will permit certain people to apply for adjustment of status (I-485) even during the period of visa retrogression will not apply to those who go through the consular immigrant proceeding. This means that those who have been waiting for the visa number outside of the U.S. to start the consular immigrant visa proceedings will not be able to get any help from this legislation. They will remain "subject" to the visa retrogression and until the visa number becomes available, they will not be able to apply for the immigrant visa for years from now. Those, who had already started the consular immigrant visa proceedings to take advantage of speedy processing in some consulates like Montreal, Canada or whatever and then remain stuck with the visa number retrogression, may be able to file I-485 application regardless of the visa retrogression, if they will be physically present in the U.S. at the time when this bill is enacted into law and the USCIS starts implementing the law.
Once this bill is enacted into law, there will be a huge difference between the consular immigrant visa processsing and the USCIS I-485 adjustment processing. Under the visa retrogression environment, it will make no sense that one considers a consular immigrant visa proceeding once this bill is enacted into law. This may sound unfair to those who will have to go through the consular proceeding as they are present outside of the U.S., but the intent of this legislation is to give a relief to those who will have to face a tremendous hardship after spending years of endurance and hard work and have been stricken by the lightening ball of visa retrogression. This bill amends Section 245 of the immigration statute which applies only to the I-485 application proceedings for those who are physically present in the United States.