- While the passage of the bill is by no means a certainty, the provisions which might garner bipartisan support, constitute a blueprint for much-needed immigration reform.
A new set of immigration provisions to be introduced as part of a budget reconciliation bill in the United States could result in a reduction in wait time for Indians in line for permanent residency. The provisions include allowing people in the employment green card backlogs to seek a waiver of the annual country-cap limitations by paying a super fee of $5,000 at the time they file their final adjustment of status applications. Indians currently face decades-long wait time for permanent residency on account of annual country quotas.
On September 10, 2021, the House Judiciary Committee released a press statement: “Chairman Jerrold Nadler (D-NY) announced the committee print for the Committee markup on Monday, September 13th on legislative proposals under the budget reconciliation instructions.” Before becoming law, the provisions would have to pass the Judiciary Committee, the House of Representatives and the Senate and be signed by the president. (Update: On September 13, 2021, “The House Judiciary Committee voted 25-19 along party lines to advance [the] legislation,” reported Suzanne Monyak of CQ/Roll Call. No substantive amendments passed that changed the underlying immigration provisions in the bill.)
It is unclear if the Senate parliamentarian will permit Democrats to include immigration provisions through the reconciliation process—which allows a bill to avoid a filibuster—and if enough Democratic senators support all the immigration provisions that appear in the Judiciary Committee print.
Family and Employment-Based Immigrants: Under the committee print, an employment-based immigrant applicant with a “priority date that is more than 2 years before” can adjust to permanent residence without numerical limits by paying a “supplemental fee of $5,000.” The fee is $50,000 for the EB-5 category (immigrant investors). The provisions expire in 2031.
A family-based immigrant sponsored by a U.S. citizen with a “priority date that is more than 2 years before” can adjust to permanent residence without numerical limits by paying a “supplemental fee of $2,500.” However, only 8% to 15% of family-based immigrants (depending on the category) adjusted to permanent residence in the United States in the financial year (FY) 2019. In contrast, up to 94% of employment-based immigrants (high-skilled) were adjustment of status cases in FY 2019 and, therefore, could have benefited from the provision. Only 3% of individuals in the EB-5 category received permanent residence in FY 2019. Attorney Ira Kurzban recommends a V visa to allow families to enter the U.S. and use the adjustment of status provision in the bill.
If an applicant’s priority date is not within two years, they can still file for adjustment of status for a $1,500 fee (and a $250 fee for children), but they would need to be inside the country. That would provide individuals with immigration benefits, such as an employment authorization document, even while waiting for permanent residence.
The bill also will recapture a minimum of 226,000 immigrant visas in family and employment-based categories that went unused between FY 1992 and FY 2021. Green cards are protected for diversity visa winners who could not come to the United States due to the Trump administration’s “Muslim ban” or Covid-related policies and delays.
Legalization: Individuals can receive permanent residence after paying a $1,500 supplemental fee who have been “continuously physically present in the United States since January 1, 2021” and arrived before age 18. The measure would help people in DACA (Deferred Action for Childhood Arrivals) status and also people who may not have qualified for DACA. Individuals in Temporary Protected Status and those who received Deferred Enforced Departure also are eligible. The qualifications differ for the three groups and there could be changes to these measures. To obtain permanent residence, individuals cannot be disqualified based on grounds of ineligibility and must complete “security and law enforcement background checks” and a medical exam.
Essential Workers: Many employment-based immigrants might be able to adjust to permanent residence status as “essential workers.” According to a Department of Homeland Security memorandum issued on August 10, 2021, “The industries that essential workers support represent, but are not limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, and law enforcement.”
The Advantages of Being an Essential Worker: If an individual qualifies as an “essential worker” under the bill, an employer would not need to obtain labor certification and an I-140 petition. Individuals who qualify as essential workers could obtain green cards outside the numerical limit without paying the $5,000 fee, since “the essential worker provisions fall under the new INA [Immigration and Nationality Act] 245B provision, which functions independent of INA 201, 202, 203 and 245(c).”
While most media attention has focused on legalization efforts for Dreamers and others, the legal immigration measures in the bill would provide significant benefits and help U.S. employers retain talent, while also potentially helping U.S. universities. The difficulty in obtaining permanent residence (and H-1B status) in the United States has encouraged more Indian students to choose Canadian universities over American schools.
In the United States, the annual limit of 140,000 employment-based green cards is considered too low and includes a 7% per-country limit that burdens immigrants from India, China and the Philippines. According to the Congressional Research Service, it will take 195 years to clear the backlog of Indians in the employment-based second preference. And the U.S. backlog in employment-based categories will exceed 2 million people by 2030.
Amy Ghosh is a practicing lawyer in Los Angeles. She migrated to the U.S. in 1987 and has been married to a (retired) rocket scientist for 35 years. She has two adult children. Before becoming an attorney, she was a biochemist and worked for several well-known hospitals and laboratories. Ghosh continues to be very much in touch with her motherland India and her favorite city Calcutta. She has recently produced a Bengali movie “Urojahaj-The Flight” by acclaimed filmmaker Buddhadeb Dasgupta. Ghosh is continually looking for meaningful opportunities to contribute to society through her legal and social work.