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Visa Recapture & Backlog Reduction in the Build Back Better Act
Priority Bill Spotlight

In addition to providing substantial immigration relief, for undocumented immigrants with long standing ties to the United States, the Build Back Better Act (BBB) would also improve the immigration system and reduce the harm of green card backlogs by recapturing unused visa numbers and allowing immigrants in backlogs to advance their process for additional fees.

Jeeva Kochuparambil Jose, with her son, Reuben, went on unpaid leave when her work permit expired. Kochuparambil Jose and her husband, Dennis Thomas, are expecting a second child.

Update 11/19/2021: The Build Back Better (BBB) Act passed the House of Representatives on November 18th, 2021, and now waits action in the Senate.

“The Build Back Better Act (BBB) includes language to recapture unused visa numbers for family- and employment-based green card applicants waiting in backlogs.”

Is Visa Recapture in the Build Back Better Act?

Yes, the text of the Build Back Better Act (BBB) as introduced in the House of Representatives includes language to recapture unused visa numbers for family- and employment-based green card applicants waiting in backlogs.1

According to congressional staff, more than 400,000 family- and employment-based visa numbers are likely available for recapture. These unused visa numbers were authorized by law to be allocated in previous years, but were never issued to any immigrant, often due to the government’s inability to timely process the applications. Under law, unused immigrant visa numbers are supposed to “roll over” to the following year; however, because of the faulty formula used to calculate annual limits on green cards, many of these visa numbers are instead lost forever.

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. It would also correct the legislative formula to ensure that all future visa numbers are actually used.

BBB also includes language to recapture Diversity Visas between fiscal years 2017 to 2021 that were authorized for specific recipients who were unable to claim them because of the Trump Administration’s travel bans or the COVID-19 pandemic. Those Diversity Visa lottery winners would maintain their eligibility, which under current law would otherwise be voided, and be able to claim their visas.

“With early filing, [green card applicants] would get many of the benefits of adjusting status, such as a portable work permit and travel authorization”

How else would BBB reduce green card backlogs?

BBB would allow applicants seeking to adjust their status from within the U.S.2 to advance the green card process with early filing and cap exemptions, further mitigating the harm of the backlogs.

Under current law, green card applicants in the U.S. have to wait for a visa number to be available to file to “adjust their status.” Because of extensive backlogs, this could take many years after the initial application is filed. In the meantime, their ability to travel abroad or to advance their career by changing jobs or employers is seriously restricted, and their family’s immigration benefits may be impacted (including the risk of their children aging out of status).

BBB would allow such immigrants to file their green card application early, even if a visa number were not immediately available. Early filing would require an additional fee of $1,500 (plus $250 for each derivative beneficiary, such as a spouse or minor children). With early filing, these individuals would get many of the benefits of adjusting status, such as a portable work permit and travel authorization, and would not be limited for decades by their temporary visa status.

BBB would also allow some applicants to expedite the process by exempting them from numerical limits on green cards, including per-country limits, if they have been waiting for more than two years after applying. This would require an additional fee ($2,500 for family-based, $5,000 for employment-based).

“Recapture and backlog reduction could also benefit recipients of other immigration relief provisions in BBB”

Who would benefit from recapture and backlog reduction?

BBB would significantly benefit many individuals and their families waiting in green card backlogs. Upwards of 9 million people are waiting in green card backlogs, including roughly 5.3 million applicants simply waiting for an available visa number. This includes millions of individuals who have been waiting outside the U.S to reunite with their U.S. citizen or permanent resident family members.

The majority of employment-based immigrants and their families are already living and working in the U.S. on temporary visas. They have waited many years to receive their green cards, and the wait times for workers and families applying today could exceed 50 years. Expediting the process for certain immigrants would provide them with more control over their careers and their families with more certainty about their future in the U.S.

Recapture and backlog reduction could also benefit recipients of other immigration relief provisions in BBB. With relief via parole, some immigrants may become eligible to adjust status. Reducing backlogs and expediting the process will help ensure that this pathway is a real and viable one for those who benefit from the relief provisions.

How will the government pay for these new policies and programs?

In addition to the fees already associated with the green card process and the fees described above for early filing and cap exemption, this legislation would also add additional supplemental fee increases for various immigration programs3 and a substantial $2.8 billion appropriation to U.S. Citizenship and Immigration Services to help fund new programs and ongoing backlog reduction efforts.

“This legislation would reduce backlogs, increase efficiency and restore fairness in the immigration system"

Would further reforms be necessary after BBB?

BBB promises the most meaningful changes to our immigration system in three decades, providing relief to millions of immigrants, including students, family members, and employees of U.S. businesses, and bolstering the U.S.’ global competitiveness. However, the legislation is not a perfect fix, and more work would remain to fully modernize the immigration system.

Most importantly, this legislation does not increase the numerical limits on green cards issued annually. As we showed in our recent report, the U.S. population is aging, leading to a shrinking future workforce. Increasing immigration is a way forward to offset current and future worker shortages that contribute to inflation, while also ensuring that talented graduates, entrepreneurs, and skilled workers are not forced to take their talents elsewhere.

And while this bill provides exemptions and work-arounds, it leaves intact problematic policies like per-country limits and the complicated roll-over scheme for unused visa numbers. Congress will need to take on bolder expansions of the immigration system to keep the U.S. globally competitive in the years ahead.

Nonetheless, this legislation would reduce backlogs, increase efficiency and restore fairness in the immigration system. Reducing wait times for immigrants applying to enter the U.S. and providing more flexibility for workers already here could even assist in alleviating some labor shortages in 2022. It would keep millions of families together and help U.S. businesses retain talent. And it would help ensure that the other immigration relief provisions are as successful and beneficial as possible.

Notes

  1. We have chosen the term “visa recapture” here to best reflect the language used in the bill; please note that elsewhere, such as in this explainer, we refer to “green card recapture.” For the sake of this legislation, the terms are interchangeable.
  2. For example, immigrants in the U.S. seeking to “adjust their status” could include employees sponsored for temporary work visas that are being sponsored for long-term employment, and family members of U.S. citizen or green card holders sponsoring them.
  3. The fee increases are as much as $500 for employment authorization applications, for example, and as much as $15,000 for immigrant entrepreneurs. They include: $500 for E, H-1B, L, O, and P petitions (Form I-129); $500 for each application to change or extend nonimmigrant status (Form I-539); $500 for applications for employment authorization (Form I-765); $75 for each approved nonimmigrant visa; $800 for each employment-based immigrant visa petition (Form I-140); $500 for requesting a replacement or expired permanent residence card (Form I-90); and $15,000 for each immigrant petition for an alien entrepreneur (Form I-526).
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Andrew Moriarty

Deputy Director of Federal Policy

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