Two immigration legislation proposals have been introduced as bills in Congress in the past year which may help to alleviate some of the backlogs in the visa application process. In the 2020 fiscal year, 122,000 family-based visas and 9,100 employment-based visas went unused as a result of the pandemic. On October 1st, 2021, 83,000 employment visas expired. The unused visas from the 2020 fiscal year have gone to waste and are currently not eligible for roll-over despite the widespread backlogs in the visa system.

Legislation Overview

The Preserving Employment Visas Act and the U.S. Citizenship Act of 2021 are proposed bills which both seek to remedy this issue.

The Preserving Employment Visas Act would allow USCIS to reuse the visas that expired in 2020. Employment-based visa applicants who applied after September 30th, 2021, would be eligible for the unused visas. The U.S. Citizenship Act of 2021 would largely revitalize the immigration system. Two of its major goals are to:

  • Provide an earned pathway to citizenship for undocumented individuals who are physically present in the U.S., and
  • Reform the visa system by clearing the backlogs on visa applications and ensuring more opportunities for visas to be granted.

The earned roadmap to citizenship would allow undocumented individuals who are physically present in the U.S. to apply for temporary legal status after an eight-year process. An individual may apply for this status after being present in the U.S. for five years if they have paid their taxes and passed a criminal and national security background check. Holders of this temporary status (Dreamers) would then be granted a green card. Dreamers would then be eligible to apply to become citizens after passing an additional background check, holding their green card for three years, and demonstrating a knowledge of the English language and U.S. civics. Individuals must have been physically present in the U.S. on or before January 1st, 2021, to be eligible for this process.

The Citizenship Act also seeks to clear the major backlogs in the employment-based and family-based visa categories. Currently, there are approximately 5,000,000 individuals waiting for these visas. The Act would recapture all of the unused visas from 1992-2020 in order to roll them over to individuals currently waiting for a visa.

The Act would also raise and eliminate certain caps on the number of employment-based and family-based visas that each country can issue. There is a 140,000 employment-based visa ceiling which would be raised to 170,000 by adding 30,000 to the 3rd preference category. The 3rd preference employment category visa cap would be raised from 10,000 to 40,000. Employment authorization would also be available for spouses and working-age children of H-1B workers.

Under the Act, Children of H-1B workers would be protected from “aging out” if the child attains his/her nonimmigrant status before turning 18. Currently, children of H-1B workers age out of eligibility for permanent residency if they reach the age of 21 before their H-1B parent is able to attain a green card. The backlogged system is a major cause of the delay in green card issuance and therefore a major cause of the “aging out” of many children. When a child ages out, he/she must either: qualify for another immigration status, remain in the U.S. undocumented, or leave the U.S. entirely even if they have lived in the U.S. for the majority of their lives. They also must qualify for a green card on their own in the future.

There is currently a cap on the number of employment-based visas eligible to each country. Of the 140,000 employment-based visas available worldwide, only 7% of those visas can go to individuals from a single country annually regardless of demand and regardless of the size of the country. If the number of visa applicants from a single country exceeds the 7% cap, a backlog is formed. These caps have contributed greatly to the excessive backlogs in the visa application system. Most of the backlogged applicants are from China or India. By 2030, estimates suggest that the number of backlogged skilled workers may exceed 2.4 million. Indian nationals will have the longest wait time of up to 89 years.

The Preserving Employment Visas Act was introduced in the Senate on September 23rd, 2021, and in the House on October 5th, 2021. The Citizenship Act was introduced in the House on February 18th, 2021. If passed, these Acts would stimulate the economy and make visas available to thousands of individuals who have been waiting years, or even decades, to receive a visa.

Efforts to Pass Legislation

It has been proposed that these new immigration bills be included in the reconciliation bill. Reconciliation is a tool occasionally used by Congress that makes it easier for proposed legislation to pass in the Senate. During reconciliation procedures, the 100-member Senate is able to pass legislation with a simple majority vote instead of the 60 votes which are normally required to end filibusters. Typically, to end a filibuster immediately and send a proposed law straight to a vote in the Senate, the cloture rule states that a super-majority of the Senators must vote to do so. This requires 60 affirmative votes. A reconciliation bill, however, only requires a simple majority of the Senate’s approval to send the bill into a vote and to pass the bill. This reduces the necessary number of votes to end a filibuster and pass a bill to 51. Reconciliation bills are also subject to expedited review procedures. The debate on the bill is limited to twenty hours. After this, the bill must be voted on. Essentially, reconciliation allows Congress to enact legislation with only a majority of votes in the Senate without the threat of a filibuster.

Though reconciliation is a useful tool, it cannot be used on all forms of proposed legislation. For example, reconciliation cannot be used to pass laws that would increase the national deficit. The Byrd Rule is the most important guidance demonstrating which types of legislation cannot be passed using the reconciliation process. Under the Byrd Rule, Senators can block parts of reconciliation bills that are “extraneous” to reconciliation’s basic purpose of implementing budget changes. “Extraneous” is defined as:

  • Measures with no budgetary effect;
  • Measures that worsen deficits;
  • Measures outside the jurisdiction of the committee that submitted the provision;
  • Measures that produce a budgetary effect that is only incidental to a non-budgetary policy change; and
  • Measures that recommend changes in Social Security.

Because of the requirement that laws can not be “extraneous” to the purpose of reconciliation, the procedure has only been used about 20 times since 1980. Legislation has to have a direct budgetary impact to qualify for the reconciliation process.

Currently, the Senate is made up of 48 Democrat Senators, 50 Republican Senators, and 2 Independent Senators. Both of the Independent Senators caucus with Democrats, making the total number of Senators in the Democrat caucus 50. If the U.S. Citizenship Act were passed to the Senate using reconciliation, the bill could potentially pass in the Senate if the Democratic party could unify all 50 of the Senators in their caucus and Vice President Harris provided her tie-breaking vote. In the Senate, the Vice President is not allowed to have a vote unless the vote is equally divided.[1] However, it must be shown that the proposed bill is not “extraneous” to the federal budget. If it is found to be unrelated or only incidentally related to reconciliation’s purpose of raising and spending money, it cannot be passed using reconciliation. The Senate Parliamentarian, a lawyer hired by the Senate to rule on procedural matters, makes the decision of whether or not a proposed law is extraneous.

The reconciliation process has been used in the past to pass immigration legislation. In 2005, the Senate passed a bill that increased employment-based immigration. By imposing a new fee on the employment-based visa petitions, the law passed the Byrd Rule by demonstrating a direct relationship to the federal budget by imposing a revenue-raising fee.[2]

However, the Senate Parliamentarian has ruled twice that it would be inappropriate to include the provision of the U.S. Citizenship Act which would provide access to green cards for undocumented individuals in the reconciliation bill. The Parliamentarian has expressed an opinion that the pathway to citizenship provisions are merely incidental to the federal budget, making them ineligible for reconciliation under the Byrd Rule.

The next suggestion which is currently being made by Democrat Senators is to offer “parole” to undocumented individuals who arrived in the U.S. before January 1st, 2011, instead of legal permanent status. Parole would protect the individuals from being deported temporarily and allow them the opportunity to secure legal employment. It is still unclear whether or not the Parliamentarian will allow the bill to enter into the reconciliation process under the new parole recommendation.

However, it is clear that the U.S. Citizenship Act as it is written, as a direct pathway to citizenship for undocumented individuals, will not be included in the reconciliation bill and will therefore not be granted the benefit of only requiring a simple majority of Senate votes to pass. Despite this result, if the parole suggestion persuades the Parliamentarian to include the U.S. Citizenship Act in the reconciliation bill, a new indirect path to citizenship may exist for the undocumented individuals who entered the U.S. before January 1st, 2011. After securing parole, individuals could apply for permanent resident status if they qualified for a family-based visa or an employment-based visa.

ILBSG continues to research and monitor ongoing legislation proposals and reviews. We recognize the need for more profound immigration reform, as presented in the options reviewed here. If you have questions as to how these potential efforts could impact you, contact us.

 

[1] Article I, Sec. 3 USC

[2] https://www.aila.org/infonet/house-passes-budget-reconciliation-bill

biden immigration plan Immigration Legislation Preserving Employment Visas Act U.S. Citizenship Act of 2021