Please visit this link before reading the article as the comment from Attorney Roger Algase is important because he clarifies that more understanding is necessary in the article. The issue is complicated no doubt and it would be appreciated if anyone who can make the issue crystal clear should comment on this.
To help discern the issues, here is the first draft of my “Unused Visa chart V1” with all the relevant sections of the current law. The pieces of the puzzle have been laid down- now to put the picture together. Feel free to help.
First draft to understand where visas are not being used and need recapturing
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(The below article needs to be updated and will be updated soon).
The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal) that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action. One of those issues was apparently to recapture unused visas.
That issue caught my eye as it has been on my research to-do list for a while. The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.
Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):
If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.
The law already allows the use of unused visa. So what is all the fuss about?
Each year 140,000 employment-based immigrant visas are issued. There is a complicated formula to calculate visa distribution. The questions we should ask are these: (1) In each fiscal year, do we have a record of how many visas were denied or otherwise not used? (2) If so, do we know if they were reused within that particular fiscal year? Perhaps the Department of State can shed light on how many were unused from previous years. Here is a report that lists number of visas issued.
From discerning all the complicated legal mumbo-jumbo from the statute, the law basically says unused visas from the previous year will be added on to the current year of visa availability. From what I can tell, unused visas are generally being put back in the pool. While I cannot completely understand the numbers in the above linked reports, I believe the information should be available. Reports from the Wall Street Journal and Politico discuss that 200,000 visas can be recaptured. I would very much like to know how that number was determined (if anyone reading this article knows, then please do let me know!).
If indeed there were unused visas in past fiscal years that need recapturing, then do we even need a new law or executive order to recapture them? The law above in black and white clearly says they can be reused.
Therefore, in my opinion, unused visas- from years past, can be reissued to other qualifying immigrants. No executive order necessary. Just understanding, implementation and execution.
I will continue my research and update this article in due course, if my research leads to more worthwhile information. But in the meantime, your question may be- why is this important?
The Backlog. The visa backlog is one of the biggest problems our broken immigration system is encountering. You may often hear the phrase that people will have to go to the back of the ‘line’ to get their visas. There is no ‘line’ as such but the’ line’ refers to the waiting time to get a visa. People are waiting for years, sometimes, decades to get visas. The employment-based preference categories have severe backlogs, particularly for China, India, Mexico and the Philippines. Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, which in turn will help businesses hire the right people, focus on growing their businesses and not worry about whether their employees will stay or leave the US.
Will the President include this in his list of executive orders? Well, I don’t think an executive order is necessary for the above reasons. But let’s imagine I missed something in my research and it does need an executive order. Will he include it in his list? Hard to say. If he is looking for maximum impact, this is definitely one way to make a big difference. Politically, he is already in a challenging situation by all accounts- the GOP will take issue with whatever he does. So, why not go for maximum impact and just go big?
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They are applying unused visas as a spillover from year 2007 onwards. Before 2007 they never applied spillover or they don’t have that many applications prior to 2000. Now they want to recapture from 1998 to 2007 which atleast 200k plus.
Thanks Adas, that is very helpful. Do you have any links for this information? Thanks again!