A bipartisan group of more than 50 lawmakers is pressing the Biden administration to allow thousands of applicants stuck in green card backlogs to apply for permanent residency much sooner than they otherwise would be able to.
Allowing all immigrants with an approved employment-based immigrant petition to file their applications as soon as the new fiscal year begins would ensure that all available green cards are used each year, the 58 House members said in a letter Friday.
Although an earlier application date wouldn’t necessarily mean that individuals secure permanent residency sooner, it would allow those immigrants to get interim relief like greater flexibility for employment and travel outside the US while they wait for their green cards.
Bureaucratic delays in the legal immigration system hold back the economy and leave many families in limbo, Rep.
“By using its authority under existing law, the Administration can ease this burden while strengthening our economy and helping to create jobs,” he said.
Employment-based green cards are capped at 140,000 slots each year—not including additional visas that become available because of family-based visas that go unused in the previous year. Additional caps limit the share of green cards allocated by country of origin. As a result, immigrants from high-volume countries like India would still face significant wait times even if the Biden administration adopted the change the lawmakers are calling for.
The State Department notifies immigrants of their eligibility to apply for a green card through a monthly publication known as the Visa Bulletin. The agency, along with the Homeland Security Department, determines eligibility dates based on the date an immigrant petition was filed and a projection of available visas.
But the State Department has been “wildly inconsistent in how it has set the bulletin, creating confusion among those seeking employment-based green cards,” lawmakers said in their letter.
Making all employment-based visas “current” on the monthly bulletin beginning Oct. 1—the start of the fiscal year—would allow any immigrant to apply for permanent residency regardless of their place in line and ensure that no green cards go to waste, lawmakers said.
Over the past two decades, more than 194,000 employment-based green cards have gone unused because of factors like administrative delays, according to the Congressional Research Service.
There’s no down side to allowing as many immigrants as possible to seek a green card so that the maximum number possible is used, said Leon Fresco, a partner at Holland & Knight LLP.
“They’re trying to manage the flow with such precision that they don’t ask one more person come forward to get a green card than is available,” he said. “It’s all complete guess work.”
The letter from lawmakers noted precedent from the George W. Bush administration for making all visa applicants eligible to seek permanent residency on the monthly visa bulletin. Cyrus Mehta, managing partner at Cyrus D. Mehta & Partners PLLC, said it’s less clear whether all employment-based immigrants have been deemed eligible for green cards at the start of the fiscal year, but added that DHS “has adopted a flexible interpretation of visa availability before.”
Being allowed to apply would involve multiple benefits for immigrants, he said, even if the timeline for securing a green card didn’t change. After an application is pending for 180 days, immigrants are allowed to move to a similar job without a new employer repeating some steps in the sponsorship process. And applicants could leave the US and return without having to secure a new visa stamp at consular offices abroad—a process that can take months depending on wait times for appointments.
Filing a green card application would protect visa holders’ dependent children from aging out of legal status when they turn 21, Mehta said. The Biden administration in February said it would “freeze” a dependent child’s age based on the date a parent applied for permanent residency; previously DHS used the date a visa was deemed officially available.
“This relief can be provided by a stroke of a pen advancing the filing dates and allowing many more people to apply for adjustment of status,” he said.
A spokesman for the Department of Homeland Security said the agency responds to members of Congress through official channels.
A State Department spokesperson said the agency does not generally comment on communications with members of Congress. The spokesperson said there are no changes to the Visa Bulletin to announce at this time.