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Green card recapture effort faces uncertain Senate future

Option may be Democrats’ best chance to make major changes to immigration policy through reconciliation

The House reconciliation bill would “recapture” and make available unused family-based and employment-based green cards from the past three decades.
The House reconciliation bill would “recapture” and make available unused family-based and employment-based green cards from the past three decades. (Chris Maddaloni/CQ Roll Call file photo)

Recapturing unused green cards, a policy fix in the House reconciliation plan that could bring relief to a vast swath of immigrants, has received far less attention than larger efforts to legalize millions of undocumented people.

But the provision could be Democrats’ only chance to make major changes to immigration policy as prospects for broader legislation dwindle.

The U.S. imposes strict per-country caps on visas distributed each year, a process that keeps green card hopefuls from populous countries like India waiting years, even decades, while leaving a surplus of unused visas in less populated nations. Under the the House reconciliation bill marked up in committee last month, unused family-based and employment-based green cards from the past three decades would be “recaptured” and made available.

The bill also would allow some foreign citizens to pay hefty fees to be exempted from annual visa quotas, helping to stem current backlogs.

If enacted, the provisions could help cut through some of that logjam — providing relief to some 4 million people waiting for family-based green cards and about 1 million stuck in the employment-based list, according to estimates from the Niskanen Center, a center-right think tank that advocates an immigration overhaul.

But those provisions have not yet received a formal review by Senate Parliamentarian Elizabeth MacDonough, and frustrated advocates say Democrats are missing an opportunity.

“It doesn’t seem like these are a priority for Democrats,” said Jeremy Neufeld, a Niskanen analyst. “When people think of immigration reform, their minds just jump to undocumented immigrants, whereas legal immigration reforms often are put on the back burner.”

[Lengthy processing times keep Indian green card seekers waiting]

Key Senate Democrats have been noncommittal about the provisions. Sen. Richard J. Durbin of Illinois, chairman of the Judiciary Committee and a leading proponent of immigration overhaul, suggested that the inaction stems from Republicans, even though their votes aren’t needed to pass legislation under Senate rules for filibuster-proof reconciliation bills.

“The House bill tries to expand it with cards that were unused in the past. I’m for it,” Durbin said at a news conference last week. “But there’s been resistance on the Republican side to expand any finite number of green cards by any means.”

Politically, Democrats may be wary of a bill offering relief to some immigrants but not others, particularly if it leaves out the undocumented population. A pathway to citizenship for undocumented immigrants, including essential workers and so-called Dreamers brought to the U.S. as children, has long been a crucial priority of the Democratic base.

Sen. Bob Menendez, D-N.J., another major player on immigration, suggested to reporters that he would be unwilling to pass relief for immigrants seeking employment-based visas in the absence of broader revisions, though he would be open to reducing family-based visa backlogs. 

“I am not going to solve businesses’ problems when they are absent from the immigration discussion,” Menendez said. “If we’re talking about recapturing visas for family backlog under the legal immigration system, I certainly would consider that.”

Seeking a reconciliation path

Kerri Talbot, deputy director at The Immigration Hub, told reporters last month that green card recapture was not part of the initial reconciliation plan submitted to MacDonough in September but that it may be up for discussion later. Democrats are currently considering whether to offer a third plan to MacDonough, possibly granting undocumented immigrants temporary relief through some form of parole.

“I do believe they’ll first pursue legalization ideas, and then I do believe that at some point they will also discuss recapture with her as well,” Talbot said.

Immigration advocates argue that the green card recapture and visa quota fee provisions are the most likely to fly under the arcane Senate rules that limit reconciliation bills to policy changes strictly budgetary in nature.

An amendment to a 2005 reconciliation bill that passed in the Senate, but was not ultimately included in the final bill, included a narrow green card recapture. The situation may not offer the clearest precedent, Neufeld said, since the measure had broad bipartisan support and the parliamentarian never issued a specific ruling.

But MacDonough’s arguments in her initial ruling last month suggest she might be open to provisions that don’t change the number of green cards being offered, as the legalization provisions would — only the timeline.

“It doesn’t change who’s eligible, it just changes when they would receive their benefits, so nobody would be able to apply for a green card who can’t already apply for a green card,” Neufeld said. “It changes the timing of benefits, which seems more budgetary in nature than changing who gets benefits.”

Whether the green card options get offered suggests a divide between House and Senate Democrats on the issue.

Rep. Zoe Lofgren, D-Calif., chair of House Judiciary’s immigration panel, noted the importance of the green card recapture provisions in the version of the plan her committee advanced.

“It’s bad for the U.S. economy to let congressionally authorized immigrant visas go to waste, especially when demand for these visas is so high. That’s why we included provisions in the House Judiciary Committee-passed reconciliation legislation to address this,” Lofgren said in a statement.

“Congress and the Biden Administration should work together to prevent bureaucratic processing delays, decrease existing visa backlogs, and ensure that unused visas are recaptured and available for use,” she said.

Suzanne Monyak contributed to this report.

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