Employment-based immigration advocates say a hoped-for measure to address massive green card backlogs as part of a must-pass congressional spending bill would do nothing to address wait times for foreign workers or their families.
Processing delays and per-country caps on the number of green cards available mean thousands of foreign workers can end up waiting decades for permanent authorization to live and work in the U.S.
After the expiration of as many as 80,000 unused employment-based green cards at the end of fiscal 2021, those workers and immigration advocates wanted Congress to pass legislation to restore unused green cards from previous years.
Yet a new Senate spending bill—which could change during the legislative process—frustrated expectations by aiming to restore thousands of family-based green cards while eliminating bonus numbers the employment-based category would otherwise see.
The proposal amounts to “robbing Peter to pay Paul,” said Xiao Wang, co-founder and CEO of Boundless, a firm that assists applicants navigating U.S. immigration requirements.
The number of unused family-based green cards has jumped during the Covid-19 pandemic as the virus forced U.S. consulates abroad to close. When those family-based green cards aren’t used by the end of a fiscal year, they roll over into the employment-based category.
Indian and Chinese workers who make up the bulk of the employment-based green card backlog hoped to have wait times shortened by years when thousands of additional green cards became available during the pandemic. However, limited processing capacity at U.S. Citizenship and Immigration Services, the agency charged with adjudicating those applications, meant tens of thousands expired.
Family Over Work
The fiscal 2022 homeland security appropriations bill released by Senate Democrats restores family-based numbers by undoing the spillover into the employment category. That addresses wait times for family-based green card applicants but leaves foreign workers in the lurch, advocates say.
Because of rollover from the family-based program last year, the number of available employment-based green cards in fiscal 2021 was roughly 262,000, compared with the annual maximum of 140,000, said Julia Gelatt a senior policy analyst at the Migration Policy Institute.
Work-based applicants won’t see unused green cards from that total carried over under the Senate proposal. Instead, unused family-based green cards from the past two fiscal years would be restored to that program. Advocates say there’s no reason Congress can’t make additional green cards available across the board.
“Whatever debate we want to have about the distribution about family- and employment based people, the fact that the total number is lower is a huge problem,” Niskanen Center policy analyst Jeremy Neufeld said.
The goal of the bill was not to pit families against employees, but to ensure that visas lost due to COVID-19 are restored, said a Democratic aide. The intention of the language was to ensure every visa previously authorized by Congress is made available and utilized to support the economy and reunite families, the aide said.
‘Skill and Talent Shortage’
The Senate measure mirrors language from amendments included in a still-pending House appropriations bill earlier this year.
“It’s such a no brainer to deal with this particular issue expeditiously,” he said in a hallway interview. “There’s a huge skill and talent shortage right now.”
“I get the family connection, but we’ve got a jobs problem that we’ve got to fix,” he said in a hallway interview. “People are going to find out as the shelves continue to clear and the jobs continue to stay open, we’ve got to do something.”
Tying It to Citizenship
A broader measure to recapture unused green cards going back decades might be included in the sweeping tax and spending package Democrats are attempting to advance through budget reconciliation. House Democrats proposed the provision, but their Senate counterparts have been noncommittal about including it in the final deal.
One key Senate Democrat has suggested he won’t get on board with a green card fix without legislation providing a pathway to citizenship for undocumented immigrants. “We’re not going to take care of business and not take care of the 11 million in some way,” Sen.
Treating employment-based green cards as just an assist for businesses is a misguided approach from Congress, said Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association.
“That’s dehumanizing the people behind employment-based immigrant visas,” she said. “The person who’s going to get that green card is a human being.”