This Congress has shown increased interest in increasing the green card limits by “recapturing” the number of green card cap numbers that went unused under the annual immigration caps in prior years largely caused by bureaucratic delays. But Congress has not arrived at a uniform approach. Instead, members are proposing legislation that adopts wildly divergent approaches to recovering lost green card numbers.
Table 1 shows the number of unused green cards in each category since the current green card allotment system took effect in 1992. The number of unused immigration slots available for “recapture” under the annual numerical limits could reach about 2.21 million, depending on what is included and over what period. This includes about 561,000 family-based numbers, 582,000 employment-based numbers, 491,000 employment-based numbers that were “recaptured” by Congress but initially went unused again, 151,000 diversity lottery numbers, and 423,000 refugee slots. Table 3 at the end of this post provides the full data on caps, used, and unused numbers.
- H.R.1177/S.348 — U.S. Citizenship Act: The U.S. Citizenship Act—the bill that President Biden’s team had a role in drafting—would recapture 1.6 million unused family, employment, and employment recapture green cards from 1992 to 2021, 73 percent of the maximum available (Table 2). If these visas were unused at the end of the fiscal year in which they were recaptured, they would pass from family to employment and back year-after-year until they were all used. By including all “employment-based” green cards, it includes the number of unused “recaptured” employment-based numbers that were previously recaptured, but then not used immediately. But the bill would not recapture any lost diversity or refugee numbers.
- The House Budget Act (Reconciliation Bill): The budget reconciliation legislation passed by the House Judiciary Committee in September includes a narrower recapture provision that resurrects between about 221,000 and 911,000 green cards. There is substantial ambiguity in the legislation text, which says that it is recapturing the number of unused visas made available to family or employment, but not including visas made available to family or employment that were added to those caps based on unused family or employment green cards in the prior year.*
The problem is that the bill is ambiguous whether those added green cards are subtracted from both the caps and the number of issuances or just the caps or something else. If they are subtracted from both the caps and the issuances, then it won’t make a difference. If it’s just the caps, then the caps are lower, but the issuances are the same and that produces the lowest number in Table 2. The middle ground possibility is that the bill is excluding any issuances above the base cap of 140,000 or 226,000. Hopefully, the administration would take the expansive approach, but it’s unclear what is required.
If these visas were unused at the end of the fiscal year in which they were recaptured, they would pass from family to employment and back year-after-year until they were all used. If these employment and family visas were unused at the end of the fiscal year in which they were recaptured, they would pass from family to employment and back year-after-year until they were all used.
The bill appears to not include the previously “recaptured” but then unused (again) employment-based green cards but it’s also not entirely clear. The bill also allows about 72,383 diversity lottery visa numbers for FY 2020 and 2021 to remain valid for immigrants who failed to receive one due to slowdowns in processing in those years or due to President Trump’s terrorism-related travel bans from 2017 through 2021, though it doesn’t exactly “recapture” diversity numbers as opposed to create new numbers for these individuals (it doesn’t limit the issuances to the number of unused visas). The bill would not recapture any refugee numbers. - H.R.4431 — Department of Homeland Security Appropriations Act, 2022: The Department of Homeland Security appropriation bill for the House and Senate would recapture 262,281 unused family numbers for fiscal years 2020 and 2021. Like the reconciliation budget bill, the appropriations bill also allows about 72,383 diversity lottery visa numbers for FY 2020 and 2021 to remain valid for immigrants who failed to receive one due to slowdowns in processing in those years or due to President Trump’s terrorism-related travel bans from 2017 through 2021. The bill would actually reduce the employment-based green cards by 140,000, leaving a net of about 197,006 total new green cards. It would not recapture any unused refugee numbers.
- S.2828 — Preserving Employment Visas Act: This bill introduced by Sen. Thom Tillis (R‑NC) would recapture about 71,000 unused employment-based green cards from FY 2020 and FY 2021. It would not recapture any unused family, diversity, or refugee numbers from those years. The visas would remain available for employment-based immigrants until they are issued.
The effects of green card recapture would be positive. Legal immigrants contribute significantly to America’s fiscal, economic, and social health, and as Table 2 indicates, none of the proposals goes as far as recapturing all the available numbers. Congress can and should go much further and ensure all the green cards that Congress previously authorized are issued.
*Post was updated to reflect the ambiguity in the reconciliation recapture provisions.
