Earlier this week, Senate Democrats released instructions for the budget reconciliation bill. Notably, the Judiciary Committee is instructed to include provisions for “lawful permanent status for qualified immigrants” — reportedly intended to cover Dreamers and other undocumented immigrants. Providing legal status to the undocumented population is an important goal, but undocumented immigrants are not the only “qualified immigrants” being denied legal status.
Congress would be remiss not to also include in reconciliation those immigrants forced to wait in line because of wasted green cards. To address this problem, the reconciliation bill should include provisions to recapture wasted green cards, ensure wasted green card slots always roll over into the next year, and prevent future waste through adequate funding for U.S. Citizenship and Immigration Services.
How to stop green cards from going to waste
Since 1990, administrative errors by USCIS and the State Department have resulted in the squandering of hundreds of thousands of green cards. Congress authorizes a certain number of green cards to be issued each fiscal year, but when bureaucrats let slots go unused, many green cards do not roll over to the following year. Instead, there’s a shortfall in the number of legal immigrants in the United States relative to what Congress intended.
In 2007, the agencies were made aware that they were routinely burning thousands of visas and have since drastically reduced — but not eliminated — the amount of green card waste. However, with travel restrictions put in place to contain the spread of COVID-19, green card waste has returned with a vengeance. Last year, more than 10,000 green cards were wasted for the first time since 2006. This year may prove to be the worst year for green card waste ever, with more than 100,000 green cards likely to go unused.
A comprehensive fix for green card waste should have three main prongs:
- Congress should recapture unused green cards. Congress has already recaptured approximately 180,000 unused green cards, but hundreds of thousands more remain available for recapture.
- Congress should prevent future green card waste. Congress can accomplish this by ensuring that green card slots always roll over into the next year or by counting green cards against the year they are made available, regardless of the precise date the immigrant actually enters the United States. This would also have the incidental benefit of ensuring that travel restrictions to protect public health do not have unintended consequences on the long-term number of legal immigrants in the United States.
- Congress must adequately fund USCIS to keep on top of green card adjudication and its other responsibilities. USCIS has over 7 million pending applications and petitions, and USCIS has twice-faced total shutdown due to revenue issues for the fee-based agency in recent years. In addition to directly appropriating money to ensure that the agency has enough resources to process green cards before they are incinerated (as well as other visas), Congress can also require supplemental petition fees to bring in additional revenue.
Luckily, there is good reason to believe that each of these three tools should be within the scope of reconciliation.
Including immigration provisions in reconciliation
Reconciliation is restricted to budgetary legislation, and the Byrd rule allows lawmakers to challenge provisions whose budgetary effects are “merely incidental.” Whether the Senate parliamentarian will allow immigration provisions in the reconciliation process remains to be seen.
Advocates have rightly pointed out that immigration has significant fiscal consequences for the federal government. Critics are skeptical that this is sufficient for the inclusion of a pathway to citizenship for undocumented immigrants. However strong one the case for offering legal status in a reconciliation bill may be, the case for addressing green card waste is still stronger.
First, the only time that the Senate has passed immigration provisions in a reconciliation bill was to address green card waste. In 2005, the Republican-controlled Senate passed a reconciliation bill that recaptured unused green cards and increased USCIS funding through supplemental petition fees. Though these provisions were ultimately not included in the final budget that passed the House, nobody challenged their inclusion on procedural grounds; no point of order was raised and an amendment to remove the provision was voted down by an overwhelming bipartisan vote. This precedent, though not binding, is evidence that some immigration provisions may be fair game for reconciliation — especially provisions to recapture visas and increase USCIS revenue.
Second, the budgetary effects of providing green cards to new immigrants are larger than the budgetary effects of providing green cards to undocumented immigrants who are already here. Undocumented immigrants already pay taxes — people waiting abroad for a green card slot to become available do not. Our recent report on this issue estimates that adopting the provisions from the U.S. Citizenship Act to recapture any family-based and employment-based green cards that were unused through 2020 would increase net revenue by over $360 billion. That figure does not include the hundred thousand green cards expected to go to waste this year or the more than a billion dollars in revenue the Homeland Security Department would receive from existing processing fees.
Third, while there is ambiguity in the Senate leaders’ instructions to the Judiciary Committee about who exactly is a “qualified immigrant,” there can be little doubt that people whose green card petitions have already been approved are qualified for legal status. The government has in fact already deemed them so.
Finally, Congress’ budgetary decisions have relied on the assumption that the green cards it has authorized will actually be used. In other words, recapturing green cards restores the long-term fiscal outlook to what Congress had already provided for.
Reconciliation holds promise as a rare vehicle for immigration reform. We’ve already wasted hundreds of thousands of green cards. We must not also waste this opportunity to fix the problem.