Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a major new development in immigration law: H.R. 5376, the Build Back Better Act was passed by the U.S. House of Representatives on November 19, 2021 and will now move to the U.S. Senate for consideration.
In this blog post, we break down all the major immigration provisions of the Build Back Better Act, including the introduction of new fees that will apply to certain categories of immigrants to request a waiver of the numerical limitations under the law.
Want to know more? Just keep on watching.
What are the major immigration provisions of the Build Back Better Act?
If passed section 60001 of the House bill would amend certain provisions of the Immigration and Nationality Act and open a path to permanent residency for four classes of immigrants allowing them to adjust their status to permanent residence (a green card). To be eligible, applicants would be required to pay a supplemental fee of $1,500, have no criminal background, and have no inadmissibility issues.
Under the bill, the following individuals would be eligible to apply for permanent residency:
- Dreamers: young undocumented immigrants brought to the United States as children before 2007, who have continuously resided in the United States, gone to school, and who otherwise have no criminal record
- Essential Workers: The Act would also extend an opportunity to individuals in our workforce who have played an essential role in our society, especially throughout the COVID-19 pandemic, such as health care workers, energy and transportation workers, public works employees, and manufacturing workers, among others.
- Temporary Protected Status recipients: recipients of Temporary Protected Status would also be eligible to apply for permanent residency. Temporary Protected Status is a temporary designation given to eligible nationals of designated countries affected by armed conflict or natural disaster. The TPS designation allows recipients to live and work in the United States on a lawful temporary basis
- Deferred Enforcement Departure applicants: those who have received a grant of Deferred Enforced Departure would also be eligible to apply for permanent residency. Deferred Enforced Departure (DED) (formerly Extended Voluntary Departure) is a form of relief from removal that allows certain individuals from designated countries and regions facing political or civic conflict or natural disaster to live and work in the United States on a lawful basis.
Recapture of unused immigrant visas
Section 60002 of the bill also introduces important provisions amending the Immigration and Nationality Act to allow for the recapture of unused immigrant visa numbers to ensure its future use to apply to all immigrant visas. The recapture of unused immigrant visas would greatly alleviate the substantial backlog currently plaguing employment and family-sponsored preference categories under the Visa Bulletin. The COVID-19 pandemic has further exacerbated these backlogs causing millions of people to remain in line for a visa to become available.
This new bill hopes to tackle this ongoing problem by recapturing immigrant visas in family and employment-based categories that went unused between FY 1992 and FY 2021. Researchers have suggested that the recapture of such visa numbers, could potentially add more than 220,000 green cards for use by family and employment-based applicants. This move will hopefully ease the backlog, especially for applicants from countries with long waiting periods such as China and India.
Waiver of Numerical Limitations and Immediate Adjustment of Status Provisions for Family and Employment-Based Applicants
Section 60003 of the Build Back Better Act also introduces key provisions exempting an alien (and his spouse and children) from the numerical limitations described in the family and employment-based immigration section of the Immigration and Nationality Act. This provision, known as a “waiver” of the numerical limitations, would allow an alien and any follow-to-join dependents to adjust their status to permanent residency provided such alien submits or has submitted an application for adjustment of status and . . . is the beneficiary of an approved petition . . . that bears a priority date that is more than 2 years before the date the alien requests a waiver of the numerical limitations; and the alien pays an additional supplemental fee.” (Emphasis added.)
Essentially, Section 60003 would create a waiver of the annual and per-country family-based and employment-based immigrant visa numerical limitations for individuals who:
- Have filed adjustment of status applications; and
- Have a priority date that is at least two years before the date of application for a waiver of the per-country numerical limitations.
This waiver process could be requested by an applicant along with payment of a supplemental fee. The supplemental fee would vary depending on the family-based or employment-based category under which the adjustment of status application was filed.
- Family-based applicants: Individuals who filed for adjustment of status based on an approved I-130 would be required to pay a supplemental fee of $2,500. This category would include: (i) married and unmarried sons and daughters, brothers and sisters, and immediate relatives of a U.S. citizen with an approved I-130; and (ii) spouses and unmarried children of lawful permanent residents with an approved I-130.
- Employment-based applicants: Individuals who filed for adjustment of status based on an approved I-140 petition in the EB-1, EB-2, or EB-3 category would be required to pay a supplemental fee of $5,000.
- Immigrant Investor-based applicants: Individuals who filed for adjustment of status based on an approved EB-5 petition would be required to pay a supplemental fee of $50,000
Section 60004 of the bill also requires additional supplemental fees for immigrant visa petitions (which are in addition to other applications fees, such as filing fees, early adjustment fees, and the waiver of numerical limitation fees provided for under Section 60003 of the Act). These include:
- Family-based applicants: A supplemental $100 fee for family-based immigrant visa petitions for: (1) married and unmarried sons and daughters, brothers and sisters, and immediate relatives of U.S. citizens; and (2) spouses and unmarried children of lawful permanent residents.
- Employment-based petitions: A supplemental fee of $800 for EB-1, EB-2, and EB-3 immigrant visa petitions.
- Immigrant Investor-based petitions: A supplemental fee of $15,000.
What happens next?
The House bill will now move to the United States Senate where it must be approved by a simple majority and signed by the President to become law. We expect that while in the Senate, the bill will undergo more revisions as it is released, debated, and voted on in the coming weeks. However, this bill includes provisions that if passed would be greatly beneficial for both family-based and employment-based immigrants waiting in the immigrant visa backlogs. It is unclear whether a final vote will come before Christmas.
We will be tracking the status of the bill carefully and report on any new developments right here on our blog.
Questions? If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.
- Major Immigration Changes to House Build Back Better Act
- Build Back Better Act Bill
- H.R. 5376 Build Back Better Act
- Biden Announces the Build Back Better Framework
- Chairman Nadler Statement on Immigration Provisions in the Build Back Better Framework
- Law Offices of Jacob Sapochnick YouTube Channel
- DOS U.S. Visa Updates
- November 2021 Visa Bulletin
- NVC Immigrant Visa Backlog Report
- List of Embassies and Consulates
- Youtube channel
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