After The October 2012 Visa Bulletin, A Decade Long Wait Under
The Family Fourth Preference Is A Piece Of Cake


by
Cyrus D. Mehta


I write
this blog with some sarcasm. The family fourth preference (F-4),
which allows US citizens to sponsor their siblings for a green
card, is horrendously backlogged. It takes over 10 years for a
brother or sister of a US citizen to obtain a green card. If the
sibling was born in the Philippines, the wait could well be over
25 years. So, why is it a piece of cake?



After the State Department released its "http://travel.state.gov/visa/bulletin/bulletin_5770.html">
Visa Bulletin for October 2012

, the F-4 at least for the worldwide category appears to be
more advantageous in terms of waiting time than say the
employment-based third preference (EB-3) for India, which is
applicable to jobs that require bachelor’s degrees or at
least two years of training or experience. The EB-3 for India is
so backlogged that it could take a US employer "http://www.nfap.com/pdf/DAY_OF_RELEASE.STEM_AND_EB_Family_Backlogs.pdf">

70 years
before
the Indian worker it sponsors gets a green
card.



What was also disappointing with the October 2012 Visa Bulletin
was that the employment-based second preference (EB-2), after
being unavailable all summer, emerged in October with a cutoff
date of September 1, 2004. This means that employers who filed
labor certifications on behalf of foreign national workers with
advanced degrees on or before September 1, 2004, can apply for
their green cards today. This does not bode too well because in
April 2012 the cutoff date for the India EB-2 was May 1, 2010.
It should have emerged in October at the same cut off level, not
back at September 1, 2004. Perhaps, the reason for this giant
leap back in time is because many in the EB-3 with priority dates
going back to 2004 and earlier are upgrading into the EB-2.
Noted immigration attorney "http://blogs.ilw.com/carlshusterman/2012/09/the-october-visa-bulletin-is-a-disaster.html">

Carl Shusterman
has
quite correctly called the October 2012 Visa Bulletin a
disaster.


But
jokes aside, the F-4 is actually a good hedge against the broken
legal immigration system in the United States. If you have a
brother or sister with kids who are 6 or 7 today, file the I-130
petition and then forget about it. Treat it like a long term
stock in a new startup that will increase in value in the years
to come. By the time the green card comes through for your
sibling, his or her kids would be 17 and 18, old enough to start
college in the US as green card holders rather than on an F-1
student visa. Note that spouses and children can derivatively get
their green cards with the principal beneficiary. If these kids
were born in India, think of the benefit this would give them
after they graduate from college and get a coveted job in the US
– and let’s hope by then that the US economy would
have turned around through some breakthrough technology that
would result in an abundance of jobs! Assuming that the EB-3 was
as backlogged in 2023 as it is today, because Congress continued
to remain in permanent gridlock, those kids would have to wait
about 70 years to get their green card under the EB-3. Instead,
the F-4 that you filed with a great deal of foresight today would
benefit your nephews and nieces by the time they come of age and
are ready to pursue their hopes and dreams in the
USA.



What if the kids are no longer children by the time your sibling
gets the green card under the F-4? What if they have already
turned 21 or more as a child is one who is under 21 under the
Immigration and Nationality Act? These are all good and relevant
concerns. Fortunately, some of these kids may be able to freeze
their age under the Child Status Protection Act. If the child is
23 years old at the time the date on the I-130 petition becomes
current, then under INA § 203(h)(1) it is possible to
subtract from that age the time that the I-130 petition took to
get approved from the time it was filed. For example, if the
USCIS took two and a half years to approve the I-130 petition
from the date it was filed, then you can subtract 2.5 years from
the child’s age, and if the age is reduced so that it falls
below 21, then the child can still immigrate with the parent.
Thus, it is actually to your advantage if the I-130 petition
takes a long time to get approved as that much more time can then
get subtracted from the age of a child who may have turned over
21 on the date of visa availability. Fortunately, the
"http://www.cyrusmehta.com/Visa.aspx?MainIdx=&QNewsId=229">
processing time at the Vermont Service
Center
for an
F-4 today is just short of 2 years. Processing times will be
longer if the USCIS issues a request for more evidence before
approving the I-130 petition. So don’t get too anxious if
the I-130 under the F-4 does not get approved so quickly. This
time will prove to be precious to reduce the age of a child who
is over 21 a decade or more from today, when the visa becomes
available under the F-4.



If we had a better immigration system, I would not waste time
extolling the so called virtues of the F-4. But when so many
preference categories have gone out of whack – 70 years for
the India EB-3 and the EB-2 seems to also be going the same
way– then we must grasp at straws and the F-4 is certainly
one until Congress is able to bring sensible reforms to our
immigration system.


This post originally appeared on "http://blog.cyrusmehta.com/2012/09/after-october-2012-visa-bulletin-decade.html"
target="_blank">The Insightful Immigration Blog
on September
14, 2012.



About The Authors



Cyrus
D.Mehta
, a graduate of Cambridge University and Columbia
Law School, is the Managing Member of Cyrus D. Mehta &
Associates, PLLC in New York City. He is the current Chair of
AILA's Ethics Committee and former Chair of AILA's Pro Bono
Committee. He is also the former Chair of the Board of Trustees
of the American Immigration Council (2004-06) and Chair of the
Committee on Immigration and Nationality Law (2000-03) of the New
York City Bar Association. He is a frequent speaker and writer on
various immigration-related issues, including on administrative
remedies and ethics, and is also an adjunct associate professor
of Law at Brooklyn Law School, where he teaches a course entitled
"Immigration and Work." Mr. Mehta received the AILA 2011 Michael
Maggio Memorial Award for his outstanding efforts in providing
pro bono representation in the immigration field.




The opinions expressed in this article
do not necessarily reflect the opinion of ILW.COM.