Immigration, Small Law Firms

How And Why We Should Recapture Unused Visas To Reduce The Green Card Backlog

The time for bold action is now.

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The comprehensive immigration reform bill introduced recently in Congress addresses some important issues that have long demanded attention. One such issue is recapturing unused visas.

“Unused visas” generally refer to the visa numbers that, primarily in the late 1990s and early 2000s, were never issued for any number of reasons, including because of bureaucratic, administrative, and systematic errors. There are over 200,000 of them, likely more, and they can be recaptured to reduce the current backlog of immigration cases waiting to be processed.

Section 3101 of the U.S. Citizenship Act 2021 bill seeks to recapture visa numbers “lost to bureaucratic delay between fiscal years 1992 through 2020.” This is important and necessary.

However, the future of this reform bill, which President Joe Biden fully backs, seems uncertain, at best, given the lack of bipartisan support. Lawmakers have carved out piecemeal bills from the broader measure that are now being considered by Congress. One is to legalize DREAMers, has long enjoyed wide support both inside and outside Washington. Another is for farmworkers, whose role in helping to feed Americas has become even more critical during the COVID-19 pandemic. If piecemeal bills are ultimately how immigration reform will be achieved in Congress, then we’ll need a separate bill to address the visa numbers.

In fact, a Senate bipartisan bill was introduced in March 2021, seeking to recapture 40,000 unused visas to be distributed to nurses and doctors. The visas are needed to address what the Department of Labor has declared a shortage of medical professionals during this pandemic. Titled “Healthcare Workers Resilience Act,” the bill seeks to recapture 15,000 visas for foreign-born doctors and 25,000 for nurses. A similar bill was introduced in May 2020 but didn’t pass. It is hard to know whether we’ll see progress on one this year.

In my opinion, when Congress passed the Immigration Act of 1990 in which these visa numbers were first established, it crafted language to ensure no visa would be left on the table. Rather, it intended that unused visas from one fiscal year would be added to those in the following fiscal year. That makes perfect sense and there is indeed a formula within the law for recovering unused visas. And while I’d love to see Congress reclaim all these lost visas through legislation, I believe Biden can also do so through administrative action.

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Why is this important now?

When I started my law firm, Watson Immigration Law, in January 2009, it was the height of the 2008 recession. Seattle, where I live, is headquarters to several major global companies, including Microsoft, which hire large numbers of talented high-skilled immigrants, many on temporary work visas, or H-1Bs. For them, the economic downtown was not kind. Many found themselves suddenly laid off and facing the very real prospect of having to return home. Some were in “line” to receive legal permanent residency, or green cards — a laborious process in which employers test the market for qualified U.S. workers before filing the final green card application on the immigrant workers’ behalf.

That line, generally referred to as “the backlog,” is the time it takes for a green card number to become available. It’s often longer than a decade. Sometimes many decades, in fact, depending on an immigrant’s country of origin. Yet, if they do not have valid work permission afforded them through the H-1B or other work visas, simply being in line doesn’t grant them the legal right to be in the United States. They must always have a valid work visa to be working and living in the United States. A similar scenario played out, to some extent, for H-1B workers, including those in the green card line, as the COVID-19 pandemic triggered an economic downturn in early 2020. Some found themselves laid off by employers struggling financially to stay afloat.

What I heard repeatedly from many of these laid-off H-1B workers — more than a decade ago and again more recently — was that they had always wanted to start their own companies, their own startups. Many were talented, skilled workers from India or China, with education and experience in science, technology, engineering, or math (STEM). For them, the green card line can be as long as 20 or more years. They could not start their own companies because a suitable visa did not exist for them. And it still doesn’t.

I told every one of the workers I spoke to that I would research to see what could be done for them — if anything. And I’ve kept that promise.

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My research was far-reaching and extensive, taking me down a policy rabbit hole which eventually led me in 2015 to write the book, The Startup Visa: Key to Job Growth and Economic Prosperity in America, which was launched at the tech conference, South by Southwest in Austin, Texas. The second edition to that book will be released in summer 2021.

All that research confirmed what my practical experience was already telling me. We have hundreds, if not thousands, of immigrants with an entrepreneurial spirit, biding their time as high-skilled workers when in fact they can be creating new companies and generating jobs and revenue if U.S. immigration laws would get green cards into their hands more quickly. As a result, I have become a dedicated advocate for recapturing unused visas from past years.

That need became even more evident during the tumultuous four years of the Trump administration. High-skilled immigrant workers came under attack in a very visible and targeted way. Almost overnight, they and other visa holders faced arbitrary visa denials as new policies, particularly the “Buy American, Hire American” executive order, created stringent interpretations of the law and regulations, sometimes downright beyond their authority.

While those policies produced a new wave of immigration litigation, many visa holders were not spared, especially during the first 18 months or so of the Trump administration. H-1B visas holders, in particular, who had been in the green card line for years, even decades, now had to return to their home countries after their cases were denied — forced to leave behind all they had built here. Some owned houses and had U.S. citizen children who had known no other life. Some were able to come back after appealing or filing a new application, but far too many were not. Had they been green card holders, maybe recipients of those thousands of unused visas instead of waiting in that interminably long line, they would have at least been spared some of Trump’s wrath.

But the visa backlog not only affects high-skilled workers, it affects all categories of immigrant-visa applications. Family members are often waiting 15, 20, or even more years to receive their green cards. And most wait outside the country. Recently, a friend drew my attention to this tweet which, in part states, “My dad just received a letter saying he could begin the process to try to get my uncle papers. My dad filed the petition 23 years ago. My uncle just passed away.” Sadly, this is a common scenario. Even worse is that when the sponsor dies, the application dies with them. This is one example of far too many deep-rooted immigration problems affecting families.

For Biden, recapturing unused visas through executive action, as I believe the law allows, not only solves many of these problems, but frees up Congressional lawmakers to deal with the plethora of equally important issues that can only be addressed through legislation. The time for bold action is now.

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at [email protected] or follow her on Twitter at @tahminawatson.

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