Build Back Better Act Proposes Recapturing Unused Visa Numbers


The United States House of Representatives has recently passed the Build Back Better Act, and this measure makes changes on many issues and among them are big changes for many employers waiting for the issuance of an employer-sponsored visa.

The most major immigration-related part of this bill provides for the recapture of unused visa numbers or green cards. These unused visa numbers will be recaptured for both employer-sponsored and family-based visa applicants, and in total, it is estimated these will amount to greater than 400,000 visa numbers available for recapture.

For employers, the process of sponsoring an employee for an employment-based visa is an arduous and many-step process that faces frequent delays at every stage. Generally, completing the process up till the final stage will take about two years. However, when the final stage is reached, the process will all come to a halt, and this is due to the lack of visa numbers.

While an employer is waiting for a visa number to be assigned, there are many issues to consider. For example, the employer cannot change the position for which an employee is waiting even to promote them. This can both limit the employer’s ability to best place their personnel, and the employee’s career growth during this time can be stunted. The worst part is that this period can be extremely long due to the significant backlog currently estimated at approximately 1.6 million for employment-based visas; an employee may have to wait close to a decade for a visa number to become available.

But recapturing unused visa numbers will at least cut a significant piece of this backlog off. However, this does lead to the question of why there are so many unused visa numbers when so many are waiting for one to be assigned. The reason starts with the fact that the U.S. reserves a maximum of 140,000 visa numbers for employer-sponsored immigrants and 226,000 for a family of citizens and current residents.

When usage falls short, the visa numbers will pass onto the next year’s limit, with unused employer numbers going to the limit for family-sponsored visas and unused family numbers going to employment. However, in the early 2000s, bureaucratic inefficiencies began to result in some numbers becoming unused and never recaptured. With time, several visa bans, and now the delays caused by the pandemic, the number of unused visa numbers has only been growing.

With the immense labor shortages facing the U.S. right now, many more employers have expressed interest in hiring foreign national workers, and recapturing unused numbers could help. However, it waits to be seen if this bill with its current provisions will pass the Senate like it has the House.