Risky to Delay Filing in Hopes of Positive Immigration Reform

While we at the Murthy Law Firm are monitoring the developments in U.S. immigration reform closely, readers are reminded that it is not advisable to delay immigration processing in the expectation of favorable changes in U.S. immigration laws. Those who have a proper immigration status, or may be eligible for status, should not wait to file or start the permanent resident (or "green card") process. Set forth here are some of the reasons to file at the earliest opportunity, instead of waiting for possible U.S. immigration reform.

Important to Establish Early Priority Date

Under the current legal immigration system, most people who want U.S. permanent residence are considered in an order of priority based on the filing date of the first application in their process. For many, this first filing is a PERM labor certification, and for others it is the filing of an I-140 employer petition or form I-130 by a family member. Delaying this filing while politicians debate various reform proposals is likely to delay one's eligibility for a green card under current laws, and even, potentially, under any new immigration laws. More information on priority dates can be found in our article, Immigration Basics: The Priority Date and Its Importance (03.Sep.2012).

Risk of Losing Valid Nonimmigrant Status

There are many scenarios that cause foreign nationals to fall out of status, even when attempting to do everything right in their respective immigration processes. At the Murthy Law Firm, we receive inquires regularly from individuals who have been laid off from their sponsored employment. Marriage termination, by divorce or death of the spouse with the primary status, also occurs.

Regular readers of MurthyDotCom have seen our previous articles about situations in which foreign nationals misunderstand or are misguided regarding the significance of the I-94 card. Such individuals often fail to extend their nonimmigrant statuses, even when eligible for one or more extension/s. They face a multitude of immigration complications, including failure to maintain status, as well as facing bars of either three or ten years on reentry to the United States due to their unlawful presence. More information on the I-94 card, including possible solutions to failures to extend status, is available in our article, Reminders for the New Year: Importance of the I-94 Card (21.Jan.2013).

Persons in non-permanent immigration statuses remain vulnerable to varieties of circumstances that cause loss of status. The longer one remains in the United States in a temporary status, the more likely s/he will encounter a difficulty with that status. Therefore, one who plans to remain in the United States permanently needs to take appropriate action toward obtaining a permanent status, rather than waiting and hoping that the process will become easier or faster due to possible immigration reform.

Potential Loss of Green Card Sponsor - Family or Employment Based

In most categories, the green card process requires multiple steps over the course of a number of years. The process generally requires appropriate family or employment sponsorship. There are many reasons that a family member or employer may be willing and able to sponsor a green card at one point in time, but be unwilling or unable to do so at a future date. As such, if the relationship currently is good and the sponsor is interested, it is better to start the process at the earliest opportunity, rather than wait for unknown changes in U.S. immigration law.

Starting GC Process Now May be Beneficial Even After Any Reform

As part of the proposed immigration reform, there has been talk of highly favorable treatment of foreign students who complete advanced degrees at U.S. universities. This proposed change has been referred to colloquially as "stapling the green card to the degree." While there has been a great deal of excitement about this possibility from those who hope to reap this benefit, it would require a significant reversal of long standing policies, as well as an overhaul of the current employment-based immigration system.

Many believe that the reality is likely to take the form of some improvements of a far less dramatic nature. The proposed changes also reference addressing backlogs in current cases, prior to providing any benefits to undocumented foreign nationals. Thus, even if there are positive immigration reforms, it may be beneficial to have begun the process and to have established a priority date before any changes go into effect. There are many variables that impact the eventual terms of any immigration reform legislation. Legislation is always a matter of compromise, and, historically, the creation of benefits has required at least some trade off in terms of enforcement and restrictions. Changes in legislation may benefit some, while creating additional challenges for others. At this initial stage, it is simply too early to predict, with any accuracy, exactly what may happen.

Immigration Reform Not a Guarantee

There is no guarantee that immigration reform will pass. While support for immigration reform certainly has increased since the recent presidential election, there are still many competing interests and roadblocks to U.S. immigration reform. Reform efforts are likely to pass in the U.S. Senate. But, there are huge challenges in the U.S. House of Representatives, where the anti-immigration lobby wields significant power. More information on the legislative process is available on MurthyDotCom in our article, How a Bill Becomes a Law.

Conclusion

We at Murthy Law Firm are hopeful that immigration reform will pass and will truly help many of our clients and other readers. We will do our part, working with other groups to lobby for much needed reform in U.S. immigration laws and policies. We encourage other like-minded individuals and organizations to climb on the bandwagon and lobby for change. It is important, however, to be cautious and practical, taking advantage of any changes in the law, but not relying on an uncertainty. Questions regarding one's available immigration options, both under the current laws and under any future changes in U.S. immigration law, may be addressed by contacting the Murthy Law Firm to schedule a consultation with one of our qualified, experienced attorneys.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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