The House has now passed the Build Back Better (BBB) Act (H.R. 5376), which the Senate may or may not pass through the reconciliation process. The bill includes several important immigration-related provisions. This post will explain them in detail.

Sec. 60001 – Parole and Work Permits for Long-Term Residents

BBB would authorize (or require)[1] the Department of Homeland Security (DHS) to temporarily provide a legal status known as “parole” to any noncitizen in the United States (including both illegal immigrants and legal temporary workers and their families) who meets the bill’s eligibility criteria.

Eligible immigrants: Applicants must only[2] prove that they have “continuously resided” in the United States since before January 1, 2011 (i.e. since at least December 31, 2010). DHS currently uses two different definitions of “continuous residence.” For naturalization purposes, “continuous residence” would typically exclude absence from the United States of more than 1 year and exclude absences of more than 6 months but less than a year unless the applicant can prove they maintained residence here. For Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), and the green card registry programs, the government excludes absences that are “brief, innocent, or casual.”

Population size: The Congressional Budget Office (CBO) estimates that 6.5 million noncitizens would receive parole. The Center for American Progress’s Philip E. Wolgin, Nicole Prchal Svajlenka, and Claudia Flores estimate that these provisions would allow 7.1 million undocumented immigrants to apply. The Center for Migration Studies puts the number of undocumented immigrants who could qualify at 6.3 million. None of the estimates specifically say how many legal temporary workers, students, and other legally present temporary residents could apply, though the CBO estimate appears to include them. A couple hundred thousand is a reasonable guess (though other provisions of the bill might benefit them more).

Duration of status: DHS would have to start accepting applications status 180 days after the date of enactment. If it were enacted in January 1, 2022, the first applications could be received by about July 1, 2022, and based on current processing times, most applications would not be approved before July 1, 2023, and the parole status would expire September 30, 2031. Therefore, BBB would probably provide the normal applicant only about 8 years and 3 months of guaranteed legal status and employment authorization. What would happen next is unpredictable. A future administration could potentially extend parole for those who entered without inspection under its existing authority under section 212(d)(5)(A) of the INA. It could also create a parole readmission program for the parolees under this program who were inspected and admitted.

Benefits: Parolees under this program would receive legal status and work authorization for the duration of the program. They would also be allowed to apply for state driver’s licenses. Anyone who is married to a U.S. citizen, is the parent of an adult U.S. citizen, or is the minor child of a U.S. citizen could immediately adjust to legal permanent residence after receiving parole because being “paroled” removes the illegal entry bar to adjusting to permanent residence. The Congressional Budget Office (CBO) estimates that 3 million would gain permanent residence after receiving parole.

Ineligible immigrants: Anyone establishing residence in the United States after December 31, 2010 would be excluded. The normal criminal and security bars and waivers to them would apply. Immigrants are ineligible if they are barred from admission to the United States for torture, genocide, terrorism, material support for terrorism without duress, recruitment of child soldiers, money laundering, severe human trafficking, smuggling of illegal immigrants, polygamists, international child abductors, unlawful voters, and any violator of any drug law (except for a single conviction for simple possession of 30 grams or less of marijuana). Those with multiple criminal convictions with aggregate sentences of more than 5 years, offenses involving prostitution in the last ten years, or anyone who has committed a crime “involving moral turpitude” would also be presumptively banned. Moral turpitude is defined at the local level, but common crimes include murder, rape, aggravated or sexual assault, robbery, burglary, drugged driving, drunk driving with a suspended license, voluntary manslaughter, spousal violence, child abuse, and welfare or check fraud.

Waivers: Except for murderers or torturers, applicants may request a waiver for crimes involving moral turpitude and multiple criminal convictions if the applicant can show a denial would cause “extreme hardship” to their spouse, parent, son, or daughter who is a U.S. citizen or legal permanent resident, or if the offense was more than 15 years ago and they were rehabilitated to the satisfaction of the government.

Sec. 60002 – Ending Family- and Employment-Based Green Card Waste

BBB would prevent green cards from being wasted in the future. Congress has established annual numerical limits of 140,000 for employment-based (EB) green cards and a de facto limit of 226,000 for family-based (FB) green cards. Any year that not all of the 226,000 FB green cards are used, they get added the following year to the EB cap. But if the government cannot process all those additional EB green cards before the end of that year, the green cards are just lost forever. This is exactly what played out in 2020 and 2021 when 120,000 FB green cards went unused in 2020 after consulates were closed, and then the government processed only 58,000 of the 120,000 for EB immigrants in 2021. BBB would automatically add any unused EB to the FB cap of 226,000 to prevent this situation from occurring in any future year.

Sec. 60002 – Recapture Unused Family-Based Green Cards

BBB would “recapture” some green card numbers that went unused under the FB cap. The formula that BBB uses to establish whether a FB green card is “unused” is as follows:

The difference, if any between—

(I) the number of visas originally made available under section 201(c)(1) [to FB immigrants] for fiscal years 1992 through 2021, setting aside any unused visas made available to such immigrants in such fiscal years under section 201(c)(3) [unused numbers leftover from the employment-based (EB) categories in the prior year [or FB category for 1993] and added to the FB cap]; and

(II) the number of visas described in subclause (I) that were issued under section 203(a) [to FB immigrants], or, in accordance with section 201(d)(2)(C), under section 203(b) [to EB immigrants if they went unused by FB immigrants in the prior year].

The first step is to identify the number of green cards “made available” to immigrants under the FB categories from 1992 to 2021 (6,970,521) and then subtract out the number of FB visas that were made available as the result of EB visas going unused in the prior year and being added to the FB cap (160,451). Setting aside ambiguity #1 (see note),[3] this gives us the “BBB FB cap” (226,000 for every year except for 1992, 1993, and 1996: 6,810,070).

The second step is to identify the number of issued FB visas (~6,414,409). Then, we must interpret the phrase “visas described in subclause (I).” Setting aside ambiguity #2,[4] the best interpretation appears to be that this refers to FB green cards that were issued under the BBB FB cap (i.e. excluding issuances based on the availability of unused EB green cards being added to the FB cap). Thus, whenever the number of FB visas issued is greater than the BBB FB cap, the number of “unused” green cards is zero. Then, in years when the FB issuances are lower than the BBB FB cap, the text says the agency must also count as issued those unused FB green card numbers that were later issued under the EB green card cap (or FB cap for the single fiscal year of 1993).

Setting aside ambiguity #3 with regard to how to deal with unused FY 2021 green cards,[5] this leaves 6,621,165 FB green cards “used” for BBB purposes, and 188,905 unused—a total which assumes that all unused 140,000 FY 2021 FB numbers will be used by EB in FY 2022. Any of the 140,000 not used by EB in 2022 would get added to this total. These numbers would remain available for FB immigrants until they are all used.

Table 1 contains the relevant numbers for each year (see the endnote for a comparison to Congressional Research Service (CRS) numbers).[6] As Table 1 shows, due to its complicated formula, BB only recaptures about 34 percent of the unused family-based green cards from 1992 to 2021 (188,905 out of 556,119). It is true that these numbers often went over to employment-based category for use, but BBB does not provide the FB categories all of the green cards that were originally promised to them.

Sec. 60002 – Recapture Unused Employment-Based Green Cards

BBB would also recapture some green card numbers that went unused under the EB green card cap. The formula that BBB uses to establish whether a EB green card is “unused” is effectively the same as the FB formula above:

The difference, if any between—

(I) the number of visas originally made available under section 201(d)(1) [to EB immigrants] for fiscal years 1992 through 2021, setting aside any unused visas made available to such immigrants in such fiscal years under section 201(d)(2) [unused numbers leftover from FB categories in the prior year [or EB category for 1993] and added to the EB cap]; and

(II) the number of visas described in subclause (I) that were issued under section 203(a) [to FB immigrants], or, in accordance with section 201(c)(3)(C), under section 203(a) [to FB immigrants if they went unused by EB immigrants in the prior year].

The first step is to identify the number of green cards “made available” to immigrants under the EB categories from 1992 to 2021 (4,637,238) and then subtract out the number of EB visas that were made available as the result of FB visas going unused in the prior year (or EB visas for FY 1993) and being added to the EB cap (437,238). This gives us the “BBB EB cap” (140,000 for every year: 4.2 million total).

The second step is to identify the number of issued EB visas (~4,058,896). Then, we must interpret the phrase “visas described in subclause (I).” Setting aside ambiguity #4,[7] the best interpretation appears to be that this refers to EB green cards that were issued under the BBB EB cap (i.e. excluding issuances based on the availability of unused EB green cards being added to the FB cap). Thus, whenever the number of EB visas issued is greater than the BBB EB cap, the number of “unused” green cards is zero. In years when the EB issuances are lower than the BBB EB cap, the text says the agency must also count as issued those unused EB green card numbers that were later issued under the FB green card cap (or FB cap for the single fiscal year of 1993). This leaves 3,929,339 EB green cards “used” for BBB purposes, and 270,661 unused. These numbers would remain available for EB immigrants until they are all used.

See Table 2 for the relevant numbers for each year (see the endnote for a comparison to CRS numbers).[8] As Table 2 shows, due to its complicated formula, BB only recaptures about 46 percent of the unused EB green cards from 1992 to 2021 (270,661 out of 582,275). While some of these numbers originally came from the FB categories and some were later used by the FB categories, BBB doesn’t recapture the full number of unused EB green cards.

Sec. 60002 – Diversity Visa Lottery “Recapture”

BBB also would authorize additional green cards for diversity visa lottery winners who failed to receive a green card during fiscal years 2017 through 2021 if:

1) they were refused a visa, denied admission, or prevented from seeking admission because of President Trump’s security/​terrorism travel ban orders; or

2) they were unable to receive a visa interview despite submitting a visa application or were unable to seek admission/​denied admission to the United States despite being approved for a visa because of COVID-related visa processing delays.

Unlike the FB and EB recapture, the diversity lottery provisions do not limit the number of diversity lottery green cards that may be issued to immigrants who meet these criteria. In other words, anyone who meets these criteria can qualify, regardless of the number of wasted diversity lottery green cards. In theory, this means that the number of diversity lottery visas under this section could exceed the unused diversity lottery cap slots for those years because the State Department selects more winners than the cap because it predicts that some applicants will not apply to consulates in time or will be disqualified.

With respect to the first group (those banned by Trump’s travel ban orders), there is some ambiguity about how broad a group that this covers. The text refers to three groups 1) those “refused a visa” (meaning those who applied at a consulate and were denied), 2) those “denied admission” (meaning those who received a visa but were turned away at a U.S. port of entry), and finally 3) those “prevented from seeking admission.” This exact phrase has never appeared in immigration law and is not defined in the bill. “Seeking admission” simply means trying to legally enter the United States, so it could refer to only those who have received a visa but were denied boarding a plane, or it could refer to any action by the government to “prevent” them from seeking admission (no matter how far removed from the actual action of seeking admission at a port). This is important because many applicants did not show up for visa interviews or did not submit visa applications because they were legally banned from coming to the country, so the broadest interpretation would include any qualified applicant subject to the ban.

The second group (those affected by COVID-19 delays) is more precisely defined to limit it only to those who actually applied for a diversity visa at a consulate after winning the lottery. The State Department does not publish statistics on this, but in 2021, it revealed in a court filing that it received 50,756 applications from lottery winners. This number excludes their spouses and minor children (which it doesn’t centrally track), and there is usually one “derivative” applicant for every primary applicant, so that would imply about 101,000 applicants (out of the 134,425 lottery winners).

Table 3 shows the number of diversity lottery selectees by fiscal year for travel ban countries and overall. From 2017 to 2021, there were 43,326 diversity lottery winners from travel ban countries who did not receive visas. In 2020 and 2021, there were 182,524 diversity lottery winners overall who did not receive visas, which was much higher than the 72,732 unused cap slots in those years. The State Department selected a lot more winners in 2021 than usual because it had so much trouble filling the spots in 2020, which means that given an infinite timeframe, it’s likely that the total cap could be exceeded if anyone who applied could receive a green card (for a comparison to CRS, see note).[9]

Sec. 60003 – Early Filing of an Adjustment of Status Application

The BBB allows immigrants to file adjustment of status green card applications prior to a green card being deemed to be “available” for them under the green card limits. The way that the law is currently interpreted, immigrants cannot file to adjust to permanent residence status whenever the State Department projects that the existing pool of applicants will fill the green card limits. Cyrus Mehta has explained why limiting filings based on a projection is not justified by the text of the law, but the BBB would unequivocally require the administration to accept “early filed” applications for approved beneficiaries of family- or employment-based petitions if they pay an extra fee of $1,500 plus $250 for each spouse or minor child.

This would benefit the 850,000 or so employment-based immigrants in the green card backlog who are already in the United States working. The primary benefit of early filing an adjustment of status application is that applicants can receive employment authorization documents that allow them to work in any similar job, allowing them to leave their sponsoring employers for higher paying jobs or to take promotions. A few hundred thousand family-based applicants could also benefit from this provision, which would in most cases authorize them to work and travel and give them a quasi-legal status while their application continues.

Sec. 60003 – Exemptions from the Green Card Limits for Adjustments of Status

Until September 30, 2031, BBB would exempt from the green card limits:

1. any family-based applicant applying to adjust status to permanent residence in the United States who is otherwise eligible if they were petitioned for more than 2 years ago and pay a fee of $2,500 in addition to the normal fees.
   • These applicants are the spouses and children of legal permanent residents and the adult children and siblings of legal permanent residents (and their spouses and minor children). More than 90 percent of these applicants are outside of the United States, but also excluding immediate relatives not counted against the caps, there are about 7 million applicants, so approximately 700,000 family-based applicants might benefit from this provision. Unlike nearly all employer-sponsored applicants, the $2,500 cost could be an issue for some portion of this population.
2. any employer-sponsored applicant (except, strangely, EB‑4 “special” immigrants) applying to adjust status to permanent residence in the United States who is otherwise eligible if they pay a fee of $5,000 in addition to the normal fees.
   • There were about 847,000 petitions for employees and their families as of April 2021 backlogged as a result of the caps. No one reports on the priority date of those petitions, but most applicants now in the backlog would be immediately eligible or shortly eligible based on how long it takes to get a labor certification and then petition approved. After the recapture green cards are used up, these provision would effectively eliminate the rest of the employment-based backlog.
3. any EB‑5 investor applying to adjust status to permanent residence in the United States who is otherwise eligible if they pay a fee of $5,000 in addition to the normal fees.
   • At least 82 percent of the 61,000 investors and their family members in the green backlog are abroad and ineligible to adjust, leaving about 11,000 investors and their families able to adjust.

The CBO estimates that the sections 60002 and 60003 (recapture and adjustment exemptions) would together increase revenues to the federal government of $2.3 billion and increase outlays by $8.7 billion over the next 10 years. The CBO reveals no details about its methodology, but it is known that it calculates future revenue and future costs using a static, rather than dynamic, model that ignores how changes in policy might affect total economic growth. It’s also unclear how its model factors in the departure of high skilled immigrants who would otherwise not receive permanent residence and who nearly all make above the 90th percentile for wages in the United States.

Sec. 60004 – New Fees

BBB would impose billions of dollars in new fees for legal immigrants, their families, and employers. Table 4 shows the fee increases imposed by the bill. In most of the affected categories, the new fee required by the bill would more than double the base cost of the application. The provisions would raise nearly $3 billion.

SEC. 60005. U.S. Citizenship and Immigration Services Appropriation

The BBB appropriates to U.S. Citizenship and Immigration Services $2.8 billion to process the new applications permitted by the BBB as well as “to reduce case processing backlogs.”