Build Back Better: Why Green Card Recapture Needs a Harder Push in the US

The pandemic hurt many but also brought a fresh ray of hope for those stuck in employment-based green card backlog.

Hundreds of thousands of green cards authorized by US Congress have been left unissued due to administrative complications and delays since 1992.

(Photo: iStock)

The latest round of immigration provisions in the United States' Build Back Better Act or Plan C that the Democrats are trying to squeeze through budget reconciliation intends to “recapture” green cards that went unused during the 2017-2021 period by allowing immigrants who were denied visas – either due to executive orders or COVID-19 restrictions – the ability to reapply for those visas after the bill’s enactment.

Additionally, the bill will allow certain green cards to receive an exemption to national or worldwide numerical limits on visas and have their status adjusted to that of a lawful permanent resident provided they meet certain criteria.

This includes beneficiaries of both family-based visas and employment-based green cards and requires the individual seeking the exemption to pay a fine.

The good thing about the reconciliation bill is that it prevents the legislation from being filibustered in the Senate. So, this might be the best chance to get ahead but there are several roadblocks that are still preventing it from making it to the final reconciliation legislation. But before jumping into the barriers, let us quickly outline the problem the “recapture” is trying to address.

Unissued Green Cards & a Wasted Opportunity

Hundreds of thousands of green cards authorised by the US Congress have been left unissued due to administrative complications and delays since 1992. The pandemic hurt many but also brought a fresh ray of hope for those stuck in the employment-based green card backlog.

As the number of unused family-based green cards jumped during COVID-19 when US consulates abroad were forced to close, they were transferred into the employment-based category.

Indian and Chinese workers who make the bulk of the employment-based green card backlog expected to have their wait times shortened by years when the rollover allowed around 2,62,000 green cards to be available compared with the annual number of 1,40,000.

Yet, the backlog couldn’t subside much for a combination of reasons: The time-consuming processing rules put in place by the Trump administration, the hiring freeze at USCIS right before the pandemic hit, and the limited processing capacity during the pandemic. As September drew to an end, the window of opportunity closed and 80,000 green cards were wasted, again.

Roadblocks Ahead: Democrats' All-Or-Nothing Approach

Despite the efforts of the Democrats to tuck in Plan C it is their overall attitude that repeatedly becomes the biggest roadblock. Since the early 2000s, Democrats have been riding the trend of pushing for an all-or-nothing comprehensive immigration reform that has been failing to reach the finish line repeatedly.

Their decision to put their weight and energy behind combining documented and undocumented immigration issues into humongous Christmas tree bills has been detrimental and made the task too big and unwieldy to manage.

As important as it is to find a path to legalise the undocumented, 1.2 million legal immigrants who are paying taxes, buying real estate, and contributing to the economy of the country are hurting every day because they are caught in a tough, unsolvable conundrum.

Aman Kapoor, President of Immigration Voice, a national grassroots non-profit organisation representing the rights and interests of high-skilled immigrants, revealed in a candid discussion that:

"Both sides of the aisle are aware of the positives of resolving the backlog problem yet they are not solving it. There is also a general lack of political will in wanting to address the bigger immigration issue as well and that is clear because, under all sorts of permutations and combinations of the White House and Congress, the immigration reform couldn't pass."

Aman Kapoor, President of Immigration Voice

He said, “The green card backlog is not there by chance. It’s there by design. Big businesses say one thing and mean the other. Keeping an army of immigrants in the backlog allows them to have power over them because once they acquire green cards, they are free of their employers.”

'Green Card Gives Immigrants More Power Over Their Employers'

This is the part overlooked by some legislators speaking against green card recapture, it seems. “Thinking of employment-based green cards as something favourable for big tech companies and businesses is a misguided approach from the Congress,” said Sharvari Dalal-Dheini, the director of government relations at American Immigration Lawyers Association.

"Green cards actually give the immigrants the flexibility to change their jobs. It gives them more power over their employers and not the other way round.”

Niskanen Center’s Immigration Policy analyst Jeremy L Neufeld echoed the same point. “This is not a handout for big techs. The provisions primarily help reunify separated families, protect children at risk of ageing out, and free guest workers from restrictions tying them to employers,” he stated.

The other roadblock that pops up often is the myth that dissolving the backlog will only help a narrow interest – the Indian and the Chinese guest workers. No, it will also benefit a diverse group of immigrants from other countries of origin.

Most Indians are a part of the employment-based green card backlog and form only a small percentage (8 percent) of the family-based green card backlog. Immigrants from Mexico stuck in this line will benefit the most.

More Immigrants Will Fall Into Undocumented Category if Backlog System Stays

While the murky politics around immigration rages on with the Democrats prioritising legalising the undocumented over all other issues, Dalal-Dheini points out, “What is being missed right now is that if the backlog situation doesn’t change, more immigrants would fall into the undocumented category in future and that would be unfortunate.”

Both Dalal-Dheini and Kapoor share the opinion that the Democrats have a narrow opportunity to make the recapture happen given the procedural thicket the provisions have to clear in the Senate. Neufeld thinks there still might be a chance and reminds us that in 2005, the Republican-controlled Senate had passed a reconciliation bill that recaptured unused green cards.

Though the provisions were ultimately not included in the final budget, an amendment to remove the provisions was voted down by an overwhelming bipartisan support. He said, "This precedent is evidence that recapture might be a fair game for reconciliation this time.”

When asked what can the Indian American community do to help push for green card recapture, Dalal-Dheini stated that the Indian American community should be more vocal about their stories:

"They can play an important role in changing the faulty narrative of the recapture helping primarily the employers. Legislators should understand that these are not just case numbers, that they are people with families who every day fight uncertainty even after working in the US for more than a decade."

Is the Indian American Community Doing Enough?

Kapoor, who has been advocating to help legal immigrants get green cards for the last 15 years, believes that the Indian community in the US is not a monolithic body. It is divided and that doesn't help.

The Indian Americans who have made it through the green card wall sometimes forget that others like them are still waiting on the other side. “The community is not doing enough. Indian Americans have to speak up in greater numbers and convince legislators that the backlog system creates inequality and should be done away with.”

While the fate of the green card recapture in the reconciliation bill is still to be decided, 95 organisations led by the Niskanen Center and AILA have sent a letter to deciding Senators encouraging the inclusion of green card recapture and advanced adjustment of status in the reconciliation bill. This long list shows how broad is the support for the provisions from all wings of the immigration advocacy community and will hopefully help the Senate decide favourably for the provisions.

(The author is a public policy professional based in Arlington, Massachusetts. The views expressed are the author's own. The Quint neither endorses nor is responsible for them.)