Unable to accomplish their immigration agenda through the proper legislative process, Democrats are attempting to enact a massive amnesty by exploiting a process known as "reconciliation", which only requires a simple majority to pass, but is supposed to be reserved for items related to the federal budget. The House Judiciary Committee approved those immigration provisions yesterday. My colleague Andrew Arthur analyzed the amnesty portion, which has garnered most of the attention, and highlighted that a significant number of criminal illegal aliens will be put on a path to citizenship.
Relatively overlooked is that the bill will also substantially increase permanent, legal immigration using a combination of interpretation gimmicks and exemptions to current immigration law. Step one involves a concept advocates of unlimited immigration have dubbed “recapturing unused immigrant visas”. By law, family-based immigration has a floor of 226,000 green cards per year while the employment-based immigration level is set at 140,000. Under this theory, a green card that could have been issued in a given fiscal year in the past but was not (either family-based or employment-based) is “unused” and, therefore, should be brought back to life for the benefit of a current or future prospective immigrant.
This resurrection fantasy ignores the statutory structure of green card allocation, where Congress provided clear guidance. Under section 201 of the Immigration and Nationality Act, 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 offered “two bites of the apple” for utilization. Advocates of unlimited immigration ignore this formula and treat annual immigration visa allocation as an “entitlement”.
Section 60002 of the “budget” bill purports to recapture all supposedly unused visas between fiscal years 1992 and 2021, and also nullifies the per-country cap restriction Congress implemented to encourage diversity and assimilation within the new immigrant population, as well as the preference allotment within each legal immigration category. Using data from the Department of Homeland Security "Immigration Statistics Yearbook" and a fiscal year 2010 USCIS Ombudsman report that briefly delved into this topic, I estimate that at least 793,455 green cards will permanently become available for a third bite of the apple. This includes 367,550 family-based green cards and 425,905 employment-based green cards, with the major caveat that DHS has failed to publish FY 2020 data even though FY 2021 is weeks away from wrapping up. The number of “unused” visas for both FY 2020 and 2021 is likely significant because the Covid-19 pandemic largely halted legal immigration.
Step two of the legal immigration increase revives the green cards of aliens who won the visa lottery in fiscal years 2017-2021, but who failed to obtain the visa and be admitted to the United States before the end of the fiscal year as required by law. Also found in Section 60002 of the bill, this covers any alien refused a visa or denied entry under several executive orders issued by President Trump or those who claim to have been unable to comply with the law because of Covid-19. These visa lottery winners appear to have hit a second jackpot because, as drafted, they have an indefinite window to (re-)obtain their visa and be admitted to the United States. Visa lottery winners in FY 2022 and going forward are not so lucky and remain subject to current law, which requires admission into the United States before the end of the fiscal year in which you win the visa lottery.
Step three in the legal immigration bonanza is rather crass, as it offers an exemption from the green card annual numerical limits and the per country cap if they have the means to pay a supplemental fee. More precisely, this carve-out applies to those aliens seeking to adjust status to lawful permanent resident, a process reserved for aliens already in the country, but who have to wait at least two years for a green card to become available based on the Department of State’s Visa Bulletin. Through Section 60003 of the “budget” bill, any family-based prospective immigrant with a two-year wait can jump the line for an additional $2,500, any employment-based prospective immigrant (preference categories 1-3) can jump the line for an additional $5,000, and any EB-5 immigrant investor can jump the line for an additional $50,000. In practice, this process is generally only available for employment-based green cards as these aliens tend to already be in the United States working on a nonimmigrant visa. More specifically, aliens with H-1B “temporary” work visas that are heavily used by Silicon Valley and other large corporations are the obvious beneficiaries of this provision because Congress afforded these aliens the unique ability to have both immigrant (permanent) and nonimmigrant (temporary) intent and the ability to perpetually retain H-1B status while the green card process runs the course in certain instances.
This provision facially sunsets on September 30, 2031, but don’t bet on it. First, Congress has a history of establishing “temporary” programs that benefit from nearly automatic extensions through continuing resolutions and omnibus spending bills. Once a program is on the books, only in rare instances does it actually go away. And even if this one is a true outlier that lapses, its impact on increasing legal immigration will continue for many years because the bill only requires that an eligible alien file his or her adjustment of status application by the last day of FY 2031. If these provisions become law, an already overwhelmed USCIS will be flooded with amnesty applications and special legal immigration carve-out petitions on top of standard immigration benefit requests. The backlogs will skyrocket, ensuring that it will take decades before the final adjustment of status application is adjudicated under this “temporary” exemption from the law.
And what happens to the aliens seeking to avail themselves of this cash-for-green cards program while they wait? Section 60003 also establishes another legal gimmick known as “early filing”, where the requirement that an immigrant visa be immediately available is dispensed with for an alien seeking to adjust status in exchange for a $1,500 fee for the principal and another $250 fee per derivative. The impact of this is less obvious to the general public but no less profound on the impact to the wages and working conditions of American workers. Once an alien has filed an adjustment of status application, he or she is eligible for a work permit under 8 CFR 274a.12(c)(9). Unlike an employment-based green card, which generally requires a showing that the wages and conditions of Americans are not adversely affected, this work permit is considered an “open market EAD (employment authorization document)”, meaning the alien can take any job, at any wage, and there are no protections for either Americans or the alien. While the principal alien is likely already working (probably on an H-1B), the derivative family members usually are not. This means that even more foreign labor will be added to the labor market before they even obtain a green card.
But that’s not all; it is possible that illegal aliens or any other alien waiting in the green card queue could also obtain a work permit under this provision. For example, an illegal alien who marries a U.S. citizen could obtain an EAD simply because the marriage occurred, even if an adjudicator subsequently uncovers that the marriage was fraudulent or impermissibly driven to obtain an immigration benefit. Similarly, any alien with an approved family-based (or the rare instance of an employment-based) green card that is not immediately available living abroad could also take advantage if they can somehow find a way into the country lawfully, such as being admitted on a tourist visa. Typically, aliens waiting for their green card number should not obtain any nonimmigrant visa because they are presumed to be coming to the U.S. to wait out the green card process. Does anyone believe the vetting standards under the Biden administration will allow this “barrier” to remain?