What will happen to all the pending green card family based applications (brother, sister etc..) if the RAISE Act is implemented?

Question

What will happen to all the pending green card family based applications (brother, sister etc..) if the RAISE Act is implemented?

Will all those years of wait and hope get slashed all in a moment?

Answer 1

Short Answer

If a bill like this was enacted, people with pending green card applications that are not authorized under the new law, like siblings and adult children of citizens and green card holders, will probably have their applications summarily denied. This is the likely outcome despite their often long years of patient waiting (unless the newly enacted law provides otherwise).

Long Answer

Background On The RAISE Act

The bill is co-sponsored by Republican senators Tom Cotton of Arkansas and David Perdue of Georgia, who introduced the bill to the Senate on February 13, 2017, as S. 354. The bill was referred to the Senate Committee on the Judiciary.

On August 2, 2017, Cotton introduced a revised version of the bill, designated S. 1720; this bill was also referred to the Senate Committee on the Judiciary. President Donald Trump, along with Cotton and Perdue, announced it at the White House. Within the Trump White House, Trump advisers Stephen Miller and Steve Bannon promoted and helped shape the bill. The bill has not attracted any additional co-sponsors.

The 2017 bill did not receive a vote in the Senate. A separate bill to restrict legal immigration, supported by Trump, Cotton, and Purdue, was defeated in the Senate by a 39–60 vote. In 2019, Cotton, Perdue, and other Republicans re-introduced the RAISE Act legislation.

Provisions and analysis

The bill would cut legal immigration by half, reducing the number of green cards from more than 1 million to about 500,000. The bill would also remove pathways for siblings and adult children of U.S. citizens and legal permanent residents to apply for permanent lawful residency status in the U.S., limiting the family path to spouses and minor children. The bill would also impose a cap of 50,000 refugee admissions a year and would end the visa diversity lottery.

From here (citation omitted).

It Is Hard To Know

Usually, the transition rules between one law and another are one of the final things dealt with in drafting legislation, they are often changed late in the legislative process (e.g. in a reconciliation between and U.S. House passed bill and a U.S. Senate passed bill in Conference Committee), are often drafted, in substance, by committee staff, in an inconsistent way from bill to bill, with little supervision from the responsible elected officials. Often transition provisions are omitted entirely from a bill.

Even if the draft bill says one thing now, it is unlikely that it will be enacted in precisely that form with respect to the transition provisions (if any).

When transition rules are omitted entirely, the agency charged with implementing the new law, the Justice Department, and the judiciary have to figure out what to do. Under a legal case called Chevron an agency that administers a law has considerable discretion in how that law is implemented, to which the courts will defer, so long as the implementation is not contrary to any clear statutory direction.

General Concepts

A core issue is whether someone has a vested right that cannot be taken from them without due process and compensation, or merely an expectancy that does not amount to a vested right. This distinction is rooted mostly in the 5th Amendment right under the U.S. Constitution to due process and to not have property taken without justice compensation, and, even though it is not directly applicable by its terms to Congress, in the contracts clause in Article I, Section 10 of the U.S. Constitution which provides that:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The 5th Amendment to the U.S. Constitution states in the pertinent part:

No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Typically, someone who had a current visa in force might have some sort of vested right, while someone who merely had an application for a visa (or which what is colloquially called a "green card" is one type of many) that was pending would not. Even a visa in force, however, would not always include a right to convert that visa into citizenship.