Last Thursday, House Democrats released the legislative centerpiece of President Biden’s presidency: the Build Back Better Act. And, as was widely rumored, buried deep in the bill are immigration provisions that would fundamentally change immigration policy in the United States. To start, the legislation offers amnesty to all illegal aliens who entered the U.S. before January 1, 2010. It also expands legal immigration across the board and allows wealthy green card applicants to pay money to cut in line ahead of millions waiting all over the world. Finally, to add further insult to those seeking to come to the U.S. legally, the legislation dramatically raises the fees for a sweeping array of immigration benefits in order to pay for the amnesty. Below is a short summary of the immigration provisions in the Build Back Better Act.
Section 60001. Registry. (p.794)
Section 60001 of the Build Back Better Act offers amnesty to all illegal aliens who entered the U.S. before January 1, 2010. It accomplishes this by amending the immigration registry found in Section 249 of the Immigration and Nationality Act (8 USC 1259). The immigration registry has been part of federal law for decades. In general, its purpose is to allow long-time alien residents –legal or illegal-- to apply for legal permanent residence (green cards).
Currently, the registry allows an alien to become a legal permanent resident if s/he:
- Is not inadmissible for partaking in Nazi persecution or torture pursuant to INA 212(a)(3)(E) (8 USC 1182(a)(3)(E));
- Is not inadmissible for national security reasons relating to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens pursuant to INA 212(a)(3)(A) (8 USC 1182(a)(3)(A));
- Establishes that s/he entered the U.S. before January 1, 1972;
- Has had his/her residence in the United States continuously since such entry;
- Is a person of good moral character;
- Is not ineligible for citizenship; and
- Is not deportable for terrorist activities pursuant to INA 237(a)(4)(B) (8 USC 1227(a)(4)(B)).
Section 60001 of the Build Back Better Act amends this provision simply by striking “1972” and replacing it with “2010,” thus allowing all illegal aliens who have entered the U.S. before January 1, 2010 to apply for a green card. It also requires applicants who apply for green cards under this provision to pay a $1,500 fee in addition to the regular fees required.
There has been widespread debate over granting amnesty the past 15 years, and the arguments for and against are too numerous to summarize here. However, suffice it to say that granting amnesty, as a matter of policy, strips all fairness from our immigration system. It rewards aliens who have broken the law at the expense of people all over the world who have played by the rules and waited patiently in line. Congress passed mass amnesty legislation in 1986 and it did nothing to reduce illegal immigration. Indeed, the numbers only grew.
In this case, however, the registry-based amnesty is even worse than the 1986 amnesty, because it is not accompanied by any meaningful reforms to improve border security, interior enforcement, the laws relating to unaccompanied alien minors, the asylum system, or the immigration courts, all of which desperately need attention. Nor are there sufficient safeguards to bar criminals and minimize fraud. The provision well-benefits the interests of illegal aliens, but it does nothing to advance the national interest.
Section 60002. Recapture of Unused Immigrant Visa Numbers (p. 795)
Section 60002 increases the annual minimum number of family-based green cards available from 226,000 to 226,000 plus the number of unused employment-based green cards from the prior year (if any). In addition, Section 60002 seeks to “recapture,” or add to the annual worldwide green card cap: (1) the number of family and employment-based visas that were available, but not issued, since 1992. It also restores diversity visas for aliens who were selected between 2017 and 2021 but were refused a visa or denied admission to the U.S. due to various border security, national security, and travel-related executive orders issued by President Trump, or due to slow visa processing resulting from the Covid-19 pandemic.
Section 60003. Adjustment of Status. (p. 799)
In short, Section 60003 of the House budget reconciliation bill allows aliens to pay money to cut in line for their green cards.
In general, the number of green cards that may be issued is capped by law. This is true for family-based applicants – unless you are an immediate relative of a U.S. citizens – and employment-based applicants. Those numerical caps, combined with high demand from all over the world, create wait times. Indeed, even after a sponsor files the appropriate paperwork, an alien must usually wait in line – often for years – for a green card to become available and apply for it. To ensure the process is fair, federal law expressly requires that these green cards be issued in the order that the sponsors file the papers. (8 USC 1151(e))
The House Budget Reconciliation bill, however, proposes to turn all of this on its head. Section 60003 allows virtually all aliens, family and employment-based, whose wait time is 2 years or more to cut in line and get their green cards immediately. It accomplishes this by directing the government to grant aliens who pay specified sums an exemption from the numerical caps, meaning they no longer have to wait in line. The exemption from the numerical caps is not even discretionary; if the alien pays the money, the government must grant the exemption.
Under Section 60003, the process is two-fold. First, the legislative language creates a process by which virtually all aliens normally subject to the caps may file their green card application before their turn in line comes up. They may do this so long as they pay an additional $1,500 fee with the application and an additional $250 for each derivative (meaning spouse and minor child). The categories of aliens who may file early include:
- Adult, unmarried sons and daughters of citizens;
- Adult, married sons and daughters of citizens;
- Adult siblings of citizens;
- Spouses or children of legal permanent residents;
- Adult, unmarried sons and daughters of legal permanent residents;
- Employment-based aliens classified as extraordinary ability (EB-1A);
- Employment-based aliens classified as outstanding professors or researchers (EB-1B);
- Employment-based aliens classified as multi-national executives (EB-1C);
- Employment-based aliens classified as members of the professions holding advanced degrees or aliens of exceptional ability (EB-2);
- Employment-based aliens classified as skilled workers, professionals, and other workers (EB-3);
- Employment-based aliens classified under the EB-5 program (EB-5)
Then, if an alien files an early application (with the additional fee) and his/her wait time is more than two years, the government is required to waive the numerical limits and may immediately issue the green card, provided the alien pays more money. How much the alien pays depends on the type of green card sought.
Aliens seeking to cut in line for a family-based green card must pay $2,500.
Aliens seeking to cut in line for an employment-based green card must pay $5,000 if they are applying in the following categories:
- Extraordinary ability (EB-1A);
- Outstanding professors or researchers (EB-1B);
- Multi-national executives (EB-1C);
- Members of the professions holding advanced degrees or aliens of exceptional ability (EB-2); and
- Skilled workers, professionals, and other workers (EB-3).
Aliens seeking to cut in line for an EB-5 employment-based green card must pay $50,000.
Section 60003, if passed, would result in the most horrible immigration policy for the United States. It undermines the entire system within the Immigration and Nationality Act that sets annual immigration limits to ensure diversity and fairness. In its place it creates a system that favors the wealthy and corporations, who will happily pay a few extra dollars to get their green cards immediately, and discriminates against the average person who has limited means and will only be pushed farther and farther back in line while the government processes the green card applications from wealthy immigrants. Simply put, Section 60003 is tantamount to codified bribery.
In addition to the injustice it creates for the individual immigrants, Section 60003 sends a message to the world that U.S. immigration laws are no longer grounded in fairness or equality and that our lawmakers see them as nothing more than a tool for rewarding the favored few.
Section 60004. Additional Supplemental Fees (p. 802)
The purpose of Section 60004 is to raise revenue. It does so by increases the fees legal aliens must pay for a wide variety of immigration benefits. These additional fees, charged on top of the regular fees required by USCIS, have no expiration and may not be waived in whole or in part. Finally, unlike most immigration fees, which are held by USCIS to fund agency operations, these fees will be deposited into the Treasury’s general fund, available to be used for non-immigration purposes.
Under Section 60004 aliens applying for green cards as a:
- Adult, unmarried sons and daughters of citizens;
- Adult, married sons and daughters of citizens;
- Adult siblings of citizens; and
- Spouses or children of legal permanent residents
must pay an additional $100.
Aliens applying for green cards as either an:
- Employment-based alien classified as extraordinary ability (EB-1A);
- Employment-based alien classified as outstanding professors or researchers (EB-1B);
- Employment-based alien classified as multi-national executives (EB-1C);
- Employment-based alien classified as member of the professions holding advanced degrees or alien of exceptional ability (EB-2); or
- Employment-based aliens classified as skilled workers, professionals, and other workers (EB-3)
must pay an additional $800.
Aliens, applying for green cards under the EB-5 program must pay an additional $15,000.
Finally, green card holders seeking to renew their green card or replace a lost one must pay an additional $500.
With respect to non-immigrants (aliens admitted temporarily, such as a tourist, business traveler, student or temporary worker), Section 60004 imposes an additional fee of $75 for each application and a $19 fee every time the alien departs or arrives in the U.S. and receives an I-94 or I-94W.
In addition to this baseline increase, Section 60004 requires the following categories of aliens to pay additional fees:
- Students, whether applying under the F, J, or M categories must pay another $250;
- Nonimmigrant workers applying under the E (commerce), H-1B (skilled workers), L (multinational executives), O (extraordinary ability in arts, sciences, etc.), or P (artist/entertainer) categories must pay another $500;
- Aliens seeking to change from one nonimmigrant status to another (such as student to H-1B) must pay another $500.
Section 60004 also charges an additional $500 fee for certain aliens seeking work authorization. These aliens include:
- Applicants for green cards;
- Spouses of nonimmigrant workers classified under the H, L, and O categories;
- F students seeking Optical Practical Training (OPT);
Section 60005. U.S. Citizenship and Immigration Services. (p.805)
Section 60005 appropriates $2.8 billion to U.S. Citizenship and Immigration Services (USCIS) to carry out the amnesty program found in Section 60001, the cut-in-line program found in Section 60003, and to otherwise reduce processing backlogs.