How the Build Back Better Act Can Turn the US Economy Around

COVID-19 has exposed major gaps in the U.S. labor force, including immigration concerns for millions of foreign workers due to USCIS processing delays.

Immigration experts point out that in addition to policy changes during the Trump administration, which made work authorization even more strenuous for asylum seekers and immigrants coming to the US, COVID-19 exacerbated the issue with further consulate and agency closures in alignment with quarantine measures. The foreign nationals already in the US have been waiting for months or over a year for work authorization. This major delay has led to these individuals to make the difficult decision to quit their jobs after their current authorization expires. By the end of June 2021, more than 1.3 million work authorization applications were pending with USCIS and an estimated 1.5 million immigrants are still waiting for employment-based green cards, with roughly 850,000 of those workers simply waiting to adjust their status. USCIS has tried to alleviate some of the backlog by taking certain measures such as: temporarily suspending certain biometrics requirements for some groups and granting extensions of work permits, but the issue persists.

It is estimated by the Census Bureau that there were over 1 million immigrants in the US in 2016, leaving only about 480,000 in 2020, according to JPMorgan Researchers. The steady decline of immigrant workers coupled with the 1.7 million people that retired during the pandemic, has threatened not only the labor force but also the overall economic productivity.

The Democrat's $1.7 trillion Build Back Better legislation is aimed at addressing the labor force gap caused partly by immigration complications due to USCIS delays and backlogs. To provide some background, Employment-based visas are capped at 140,000 each year and will expire at the end of the year if they go unused. Currently individuals from any one country only have access to about 7% of the annual amount of work-based and family-based green cards, with individuals from certain countries facing a wait that spans years. The proposed legislation would recapture immigrant visas starting from 1992, which could potentially open up 157,000 work-based visas and about 262,000 family-based visas – both allowing applicants to work.

The bill has yet to be passed due to lack of support from Republicans and there are those who criticize the effectiveness of the act. For example, The Federation for American Immigration Reform argued in an analysis of the Build Back Better act that "the sudden increase in the supply of legal labor generated by amnesty would likely further contribute to wage stagnation, giving employers even less incentive to raise wages." Robert Law, director of regulatory affairs and policy at the Center for Immigration Studies, adds that he is concerned the funds proposed would not be enough to combat the immense backlog issues UCSIC is facing. Law believes that "There's too much volume, there's too many other obstacles."

Despite the concerns, the Build Back Better Act is focused on providing temporary protection and work authorization to an estimated 7 million undocumented immigrants — including Dreamers and farmworkers — who are already in the U.S., leading Democrats to remain hopeful that this will kickstart the economic recovery.

Click here for update!

As the Senate reconvenes this week with new COVID-19 guidelines in effect, four Senators propose to introduce a new bill dubbed the "Healthcare Workforce Resilience Act." The proposed bill would allow immigrant medical professionals to receive an expedited green card to assist in the fight against COVID-19, the disease that is caused by the novel coronavirus and has already claimed thousands of lives in the U.S. The bill is being sponsored by Senators Dick Durbin (Democrat – Illinois), David Perdue (Republican – Georgia), Todd Young (Republican – Indiana), and Chris Coon (Democrat – Delaware).

The proposed bill will free up to 40,000 "recycled" employment-based visa slots for foreign born doctors and nurses who could help fight the COVID-19 pandemic. Under the proposed bill, nurses and physicians with approved immigrant visa petitions will either be allowed (1) entry into the U.S. if currently overseas or (2) to adjust their status if they are already in the U.S. To make this possible, U.S. Citizenship & Immigration Services ("USCIS") would "recapture" up to 25,000 immigrant visas for nurses and up to 15,000 immigrant visas for physicians. USCIS will also recapture immigrant visas for the families of these medical professionals receiving consideration under the proposed bill.

The recycled visas would not add new immigrants to the country. Rather, the recycled visas would be drawn from the pool of unused employment-based visas that Congress has previously authorized. From fiscal years 1992 to 2020, Congress authorized over 200,000 visas that went unused. The recaptured visas would be issued in order of priority date and would not be subject to country caps.

If the bill is passed, all immigrant medical professionals who have previously filed petitions for immigrant visas and receive consideration under the bill would be required to meet licensing requirements, pay the required filing fees, and would be subjected to rigorous background checks. If an immigrant medical professional receiving consideration under this bill is overseas, employers will be required to attest that the immigrant medical professional has not displaced and will not displace a United States citizen worker.

We will be monitoring these developments as they become available. Moreover, our experienced immigration attorneys can assist you in understanding these developments and in other requirements under the law.

UPDATE 04/02/2021

U.S. Senators introduced bipartisan legislation that would recapture 40,000 unused immigrant visas for eligible doctors and nurses to address the U.S.'s shortage of qualified health care professionals, a shortage that was further exacerbated by the COVID-19 pandemic. The legislation would give eligible doctors and nurses, and their family members, up to 90 days after the expiration of the COVID-19 national health emergency declaration to apply for the unused visas. Any employer wishing to hire an eligible doctor or nurse must show the hiring will not displace an American worker. Moreover, this legislation would (1) require the U.S. Department of Homeland Security and the U.S. Department of State to expedite the visa processing and (2) direct U.S. Citizenship and Immigration Services ("USCIS") to waive any premium processing fees. We will continue to monitor any developments as they become available.

An appeal of an extreme hardship waiver application was approved by the Administrative Appeals Office (AAO) after it was initially denied by the Field Office Director due to the applicant’s failure to demonstrate that his spouse would experience extreme hardship given his inadmissibility. The applicant, a citizen of the Gambia, was found to be inadmissable to the U.S. for having obtained a non-immigrant tourist visa through misrepresentation. On his nonimmigrant visa application, the applicant indicated that he was currently married and living with his spouse. Later, however, he admitted that though he was married, he and his wife had been legally separated for nearly 3 years with his wife living in Great Britain. By stating that he was married and living with his wife, the applicant led the embassy to believe that he had close family ties to his home country, showing that he had intentions to return once his visa expired, which resulted in the issuance of a tourist visa.

Because the applicant was found to be inadmissable, the burden fell on him to establish that a grant of a waiver of inadmissability was warranted. To do so, the applicant was required to show substantial evidence that his U.S. citizen spouse would suffer extreme hardship if the applicant’s waiver request was denied and he was deported. Such evidence included claims that the U.S. citizen spouse would experience medical, psychological, and financial difficulties without the applicant present. The applicant provided a record that contained consistent evidence indicating the spouse has suffered from traumatic events in her childhood, such as sexual abuse, physical injuries, neglect, and emotional abuse as well as evidence of the spouse’s abusive first marriage, which have resulted in her psychological reliance on the applicant. The spouse also explained that she had two surgeries and that additional complications may occur in the future. Due to her medical condition, she has a hard time paying for her treatment and infusions and relies on the applicant for financial assistance. The applicant has additionally demonstrated that the spouse would experience extreme hardship upon relocation to the Gambia as that would entail severing her family ties with her children and parents, relinquishing her employment in the U.S., communication issues as English is not widely spoken in the applicant’s village, no knowledge of the Gambian culture, and insufficient educational facilities as well as clinics for her treatments and infusions in the Gambi.

Due to the evidence provided, the AAO established that the extreme hardship that the applicant’s U.S. citizen spouse would suffer outweigh the negative factors, including the applicant’ misrepresentation as well as his period of unlawful status in the U.S. To read more about the AAO approval of this waiver, please [click here].

January 2013 - The Department of Homeland Security announced that U.S. Citizenship and Immigration Services (USCIS) will begin a new process that will allow certain immediate relatives (spouses, children, and parents) of a U.S. citizen to apply for a Provisional Unlawful Presence Waiver, or hardship waiver, without departing the United States. 

Currently, certain immediate relatives must travel and remain abroad, separated from their spouses, parents, and children, while USCIS processes their waiver applications. In some cases, the waiver application processing can be lengthy, prolonging the family’s separation.  Beginning March 4, 2013, however, USCIS will allow the unlawful immigrant to file their hardship waiver while still in the United States before leaving the country to obtain their immigrant visa. If the waiver is approved, applicants will be required to depart the United States and attend the immigrant visa interview at a U.S. consulate abroad. 

In order to qualify for a hardship waiver, you must be physically present in the U.S., are at least 17 years of age at the time of filing, are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen, have an immigrant visa case pending with the U.S. Department of State, believe you are inadmissable based on having accrued a certain period of unlawful presence in the U.S., establish that the refusal of your admission to the U.S. would result in extreme hardship to your U.S. citizen family member, and you meet all other requirements of the provisional unlawful presence waiver. 
USCIS anticipates that this new process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. [Read more on the new Hardship Waiver process].

• What is Deferred Action?
• What is Deferred Action for Childhood Arrivals?
• If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
• Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
• Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
• If my case is deferred, am I in lawful status for the period of deferral?
• Does deferred action provide me with a path to permanent residence status or citizenship?
• Will my immediate relative or dependents be considered for deferred action for childhood arrivals?
• Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
• Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
• Does this administration remain committed to comprehensive immigration reform?
• Is passage of the DREAM Act still necessary in light of the new process?
• What guidelines must I meet to be considered for deferred action for childhood arrivals?
• How old must I be in order to be considered for deferred action under this process?
• Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
• Do brief departures from the US interrupt the continuous residence requirement?
• May I travel outside of the US before USCIS has determined whether to defer action in my case?
• If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the US?
• If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process?
• What offenses qualify as a felony?
• What offenses constitute a significant misdemeanor?
• What offenses constitute a non-significant misdemeanor?
• If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process?
• Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?
• Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?
• What qualifies as a national security or public safety threat?
• Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status or have temporary Protected Status?
• How do I request consideration of deferred action for childhood arrivals?
• Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?
• What do background checks involve?
• If USCIS does not exercise deferred action in my case, will be placed in removal proceedings?
• Can I obtain a fee waiver or fee exemption for this process?
• Will there be supervisory review of decisions by USCIS under this process?
• Can I appeal USCIS’s determination?
• Can I extend the period of deferred action in my case?
• If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?
• Will USCIS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?
• What documentation may be sufficient to demonstrate that I came to the US before age 16?
• What documentation may be sufficient to demonstrate that I have resided in the US for at least five years preceding June 15, 2012?
• What documentation may be sufficient to demonstrate that I was physically present in the US as of June 15, 2012?
• What documentation may be sufficient to demonstrate that I am currently in school, have graduated from high school, or have obtained a general education development certificate (GED)?
• What documentation may be sufficient to demonstrate that I am an honorably discharged veteran of the Coast Guard or Armed Forces of the US?
• May I file affidavits as proof tha ti meet the guidelines for consideration of deferred action for childhood arrivals?
• Will USCIS consider circumstantial evidence that I have met certain guidelines?
• Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?
• Can I request consideration of deferred action for childhood arrivals from USCIS if I am in immigration detention under the custody of ICE?
• If I am about to be removed by ICE and believe that I meet the guidelines for consideration of deferred action for childhood arrivals, what steps should I take to seek review of my case before my removal?
• If individuals meet the guidelines for consideration of deferred action for childhood arrivals and are encountered by Customs and Border Protection (CBP) or ICE, will they be placed into removal proceedings?
• If I accepted an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
• If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
• If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process?
• How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Momoranda?
• What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer?
• Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true?
• What steps will USCIS and ICE take if I engage in fraud through the new process?