Build Back Better Act Includes Reviving Unused Green Cards

Workers stuck in visa backlogs would see relief

Roy Maurer By Roy Maurer December 6, 2021
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green card

​Immigrants waiting years to receive employment-based green cards to live and work in the United States would have a chance to realize their goal under provisions in President Joe Biden's Build Back Better Act.  

The U.S. House of Representatives passed the expansive proposal Nov. 19, sending it to the Senate, where it is subject to debate and amendments as well as to an evaluation by the Senate Parliamentarian to determine whether its immigration provisions are appropriate. The prospects for the bill's passage—and especially the immigration measures—are uncertain.

But if passed as it stands, the legislation would free up hundreds of thousands of green cards that administrations failed to use in the past, making them available for immigrants currently caught up in visa backlogs.

Specifically, the bill would:

  • Authorize the use of unused green cards dating back to 1992.
  • Prevent future loss of unused green cards.
  • Allow immigrant workers to file green card applications early for a fee, even if a visa number were not immediately available, mitigating future backlogs. "This would benefit the 850,000 or so employment-based immigrants in the green card backlog who are already in the United States working," said David Bier, a research fellow with a focus on immigration at the Cato Institute in Washington, D.C. "The primary benefit of early filing an adjustment of status application is that applicants can receive employment authorization documents that allow them to work in any similar job, allowing them to leave their sponsoring employers for higher-paying jobs or to take promotions."
  • Allow workers waiting for more than two years after applying for a green card to expedite the process for a fee, exempting them from numerical limits, including per-country caps.

"Through previous bureaucratic error and more recently the effects of COVID-19, the number of green cards issued is often less than the number of green cards made available," explained Jeremy Neufeld, an immigration policy analyst at the Niskanen Center in Washington, D.C. The expiration of as many as 80,000 unused green cards for fiscal year 2021 is the latest example of green card waste, adding to the already long wait times for millions of people stuck in visa backlogs, Neufeld said.

Limits and Per-Country Caps

Existing numerical limitations and per-country caps on green cards have also increased backlogs.

Every year, the U.S. sets aside 226,000 family-preference green cards for relatives of U.S. citizens and 140,000 employment-based green cards for workers. Green cards for immediate relatives (spouses, children and parents of U.S. citizens) are uncapped.

In addition to the numerical limits, per-country caps govern that workers from any one country cannot be issued more than 7 percent of the total number of green cards each year. That has led to workers from more-populous countries with high numbers of green card applicants, such as India and China, to face long lines lasting years or even decades.

Bier has calculated that about 9 million immigrants are currently awaiting green cards, the vast majority—83 percent—being family-based. That leaves about 1.5 million workers waitlisted or with pending petitions. "India dominates the employment‐based backlog with about 80 percent of the approved but waitlisted employment‐based petitions," he said.

Hundreds of Thousands of Unused Visas

To tackle the backlog, policy analysts and lawmakers from both sides of the aisle have suggested recapturing the unused green cards accumulated since the current green card allotment system took effect in 1992. The idea has received bipartisan support in past years.

The number of unused slots available for recapture could reach into the millions, but the provisions in the Build Back Better Act are much narrower.

"According to congressional staff, more than 400,000 family- and employment-based visa numbers are likely available for recapture," said Andrew Moriarty, deputy director of federal policy at Fwd.us, a public-policy organization focused on immigration reform.

Bier put the number of recaptured employment-based green cards at 270,661. Most employment-based immigrants and their families are already living and working in the U.S. on temporary visas.

"This legislation would not increase green card numbers, nor would it make anyone eligible for a green card who does not already qualify—it would simply ensure that visa numbers authorized in previous years are accounted for and ultimately used," Moriarty said. "It would also correct the legislative formula to ensure that all future visa numbers are actually used."

Strategy or Gimmick?

Supporters of recapture point out that the strategy aims to avoid a fight over increasing immigration levels since it reallocates unused green cards already made available.

Neufeld added that "Everyone waiting in the green card backlogs has had their petitions already approved for permanent residency. They have satisfied all of the necessary conditions prior to filing a green card application, but there just are not enough permission slips from Congress to allow them to proceed. Without immediate action, green card backlogs are only going to get worse, significantly harming not only the United States' economic growth, but also the country's reputation as the primary destination to start businesses or launch careers."

Moriarty said the green card recapture provisions in the Build Back Better Act would reduce backlogs, increase efficiency and offset labor shortages while helping U.S. employers retain talent.

Critics of the proposal, including Robert Law, director of regulatory affairs and policy at the Washington, D.C.-based Center for Immigration Studies, believes green card recapture is "an accounting gimmick" that will allow the tech industry to further displace U.S. workers.

"From a legal standpoint, there is no such thing as an unused visa," Law said. "If Congress had intended the annual immigrant visa levels to be an entitlement, it would have structured the legal immigration system in a way that perpetually retained all possible visas subject to a numerical limit. Even if visa recapture was a plausible legal interpretation of immigration law, it would be a terrible policy decision to authorize it, as it would exclusively reward one industry that has systematically exploited the immigration system to harm American workers."

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