Advocates of unlimited immigration are trying to circumvent the annual numerical limits set by Congress by devising an accounting gimmick that significantly increases legal immigration (and future chain migration) and rewards Big Tech for years of systematically discriminating against American workers. This green card giveaway is creatively framed as “recapturing unused visas”, but it is the immigration equivalent of an accounting sham because it ignores the statutory structure established in the Immigration and Nationality Act (INA) for visa allocation (lawful permanent resident status).
There are two primary avenues for obtaining a green card, a family-based petition or an employment-based petition. Congress made a policy decision to exempt from numerical limit the parents, spouses, and children of U.S. citizens. That means an unlimited number of these alien populations can obtain their green cards as soon as the government processes them. As a result, roughly 500,000 immediate relatives obtain green cards each year.
Conversely, Congress sought to limit chain migration and employment-based immigration by establishing an annual cap on each category. Because of the extraordinarily high number of immediate relatives obtaining visas each year, section 201 of the INA effectively establishes a family-based immigration floor of 226,000 green cards per year and sets the employment-based immigration level at 140,000 green cards per year.
Congress also provided clear direction about what happens if fewer than 226,000 family-based or 140,000 employment-based green cards are issued in a given fiscal year. Under section 201 of the INA, if fewer than 226,000 family-based green cards are issued in a fiscal year, the difference is added to the employment-based immigrant total for the next fiscal year. Similarly, if fewer than 140,000 employment-based green cards are issued in a fiscal year, the difference is added to the family-based immigrant total for the next fiscal year. Rather than being “unused”, the legal immigration system offers “two bites of the apple” for utilization. Advocates of unlimited immigration ignore this formula and treat annual immigration visa allocation as an entitlement.
The effects of Covid-19 serve as a real-world example of how visa rollover operates. As a result of Department of State consular offices being shut down and our borders essentially closed to international travel, approximately 106,000 family-based green cards were issued during FY 2020. Following the formula laid out above, that meant an additional 120,000 green cards were added to the fiscal year 2021 employment-based immigrant cap, totaling approximately 260,000 visas that could be issued.
According to the Wall Street Journal, it appears that U.S. Citizenship and Immigration Services (USCIS) approved approximately 180,000 employment-based adjustments of status by the time FY 2021 ended on September 30. Of course, advocates of unlimited immigration are not framing it as a 40,000 employment-based green card excess compared to standard years, but are instead complaining that 80,000 visas (the difference between 180,000 and 260,000) went “unused”.
A quick look at the Department of State’s Visa Bulletin reveals that the aggrieved are the hundreds of thousands of Indian and Chinese H-1B workers who are oversubscribed for EB-2 and EB-3 visas and thus have to wait for a visa to become available. They have found a supportive ear in Senator Thom Tillis (R-N.C.), who has introduced a bill that circumvents the INA and permanently “recaptures” the allegedly “unused” 80,000 employment-based visas. If this sounds familiar, it’s because Democrats tried to ram through the same immigration accounting sham in their reconciliation bill that the Senate parliamentarian properly blocked.
How do I know that it is Indian and Chinese H-1B workers demanding this? For starters, every employment-based green card preference category (first through third) is “current”, meaning a visa is immediately available, except for aliens from India and China. As I previously explained, the tech industry and other corporations are heavy users of the H-1B nonimmigrant visa, which allows these companies to legally underpay foreign workers based on how the “prevailing wage” is calculated. Too often, similarly or better skilled Americans are laid off and forced to train their less qualified (and cheaper) H-1B replacements as a condition of receiving a severance package. And thanks to the American Competitiveness for the 21st Century Act, an H-1B alien who is sponsored for an employment-based green card before the end of the fifth year (out of six) can remain in the United States indefinitely (and work) on the H-1B until a green card is available. Because of this, Big Tech intentionally overloads the legal immigration system by almost exclusively seeking out Indian (males) for H-1Bs, which are not subject to a per-country cap. Then, they exploit the AC21 provision to keep them in that status knowing it will take many years for a green card to become available due to the green card per-country limit that is in place to promote diversity and assimilation amongst the immigrant population. This locks in Big Tech’s relatively cheap and immobile labor force, allowing the owners of capital to extract larger profits at the expense of the wages and job opportunities of American workers.
From a legal standpoint, there is no such thing as an “unused” visa. The INA affords two opportunities, one on the family-based side and one on the employment-based side, for a visa to be issued. 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. It expressly did not, so the concept of “visa recapture” is bogus. Even if visa recapture was a plausible legal interpretation of the INA, it would be a terrible policy decision to authorize it as it would exclusively reward one industry (tech) that has systematically exploited the immigration system to harm American workers.