When we help others, we help ourselves, and together we can make a difference. With this in mind, and given the extreme push back that Senate Bill 386 (#S386) has engendered, I outline below a way that immigrants in the per country backlog can help others facing the 7% cap on per country admissions in U.S. Immigration law without relying on lawmakers. Those of you who need to read this already know the problem, as you’ve been waiting years for a green card due to per country limits, so I will not go into the problem here. What I describe here is a novel solution with a small but meaningful impact, that requires some to give to others first.
The employment based (EB) categories include family members, spouses and children, in the cap count. If there were fewer family members using the EB numbers, then there would be more EB numbers available to those suffering from the per country caps. Those families in which both spouses are in the United States in H-1B have a unique ability to make a contribution to the greater good. Let me explain.
If the principal immigrant uses their I-140 petition to adjust status, alone, then once they become a lawful permanent resident (LPR) file an I-130 petition for a spouse and children in the 2A category, they could divert the use of numbers to the Family 2A category. The Family 2A category contains a provision which states that 75% of those numbers are exempt from per country quotas, so it would be unlikely for visa availability to be limited for a certain country. Also, for many years the 2A category has been either “current” (which means visas available immediately), or backlogged one or two years. Thus, if a dual H-1B family (whether two spouses alone, or with children) were to utilize only one EB number for the principal, and utilize the 2A category for the spouse and any children, this would begin to build a bridge for others to follow and increase the number of visas available to the group as a whole. Further, if an LPR becomes a U.S. citizen, then their petition on behalf of a spouse or children (under 21) are actually completely exempt from numerical limitations. Thus, using 2A numbers, which have been relatively available for use for many years, is not likely to take away from the family category in a major way. This is because of the historically available nature of the 2A category, coupled with the fact that an LPR can become a citizen and then be exempt from numerical limitations for spouse/children entirely. The impact on the family categories of some families sacrificing a longer wait for the dependent spouse (and children) to enable other families to immigrate more quickly would be minimal. These families, who undertake this path would be EB bridge builders for others who would use that bridge to escape the endless backlogs.
There are some considerations in deciding to take this selfless course of action. First, it is critical in all immigration situations to receive the advice of counsel in your individual case, otherwise serious problems can occur. This blog is just that, a blog, and cannot substitute for competent advice in a particular case. Second, it is possible for a spouse and children to “follow to join” at a later date, using the original I-140 petition, even after the principal immigrant has been given LPR status. In that sense, eligibility to still use the I-140 of a spouse to immigrate remains valid based on that principal immigrant’s approval of adjustment of status or approval of an immigrant visa abroad, as a backup in case the 2A category proves unworkable for the spouse and/or children. Adjustment applications don’t need to be filed together for family members to still use it. Third, it is important to consider the impact of a child’s age on the process, since dependents are only permitted to accompany or follow to join the principal applicant while they’re still considered to be under the age of 21, with calculations under the Child Status Protection Act (CSPA) factored in. This area is so complex that it is not even worth explaining, due to the confusion it could cause, and requires individual advice. But the length of time that an I-140 has been pending does subtract from a child’s age. A dual H-1B family with much older children may not be the ideal candidates for this. Fourth, a spouse who has an H-4 status would not readily be able to pursue this route, because the H-4 is dependent upon the H-1B, and once the H-1B is adjusted to LPR, there isn’t a way to extend H-4 status. This bridge building can effectively only be done with dual H-1B spouses leading the charge.
While this bridge building may not help a great number of people, if even a small number of people do it, it could make the difference between a child in another family aging out, or successfully immigrating. If you are a dual spouse H-1B household please consider together with counsel whether you may be able to become an #EBbridgebuilder by utilizing the I-140 to have the principal immigrant immigrate first then file a 2A petition for spouse and children following approval of LPR status.
People are saved in hospitals every day through the generosity of organ donation. Why do people donate blood and organs for others? There is reward in knowing you have done something for others.