Build Back Better Act: Immigration Provisions

Build Back Better Act: Immigration Provisions

INSIGHTi

Build Back Better Act: Immigration Provisions
Updated December 7, 2021
The Build Back Better Act (H.R. 5376, Rules Committee Print 117-18), as passed by the House on
November 19, 2021, contains five immigration-related provisions that would impact large numbers of
both unauthorized and legally present foreign nationals (aliens).
Section 60001. Protections and Work Permits
Section 60001 would make unauthorized aliens eligible for immigration parole if they had entered the
United States before January 1, 2011, and resided continuously in the country since then. Immigration
parole is official permission to enter and remain temporarily in the United States for the parole grant
duration. Parole is not formal admission under the Immigration and Nationality Act (INA) and does not
grant beneficiaries lawful permanent resident (LPR) status.
Prospective parolees would have to pay a fee, complete background checks, and not be inadmissible
under certain INA grounds (e.g., certain prior criminal convictions, national security threat). Parolees
would be eligible for a driver’s license or state identification card and authorized to work in and
travel outside the United States. Parole would be granted for five years, extendable until September
30, 2031, and would be irrevocable unless the parolee had become ineligible under Section 60001.
An estimated 6 to 7 million unauthorized aliens would qualify.
Section 60002. Recapture of Unused Immigrant Visa Numbers
In 1990, Congress established the current annual numerical limits for family-sponsored and employment-
based immigrants. Processing issues and INA statutory language prevent some visas from being used each
year, and they subsequently become unavailable. Bills have repeatedly been introduced to recapture them.
Section 60002 would amend the INA to make unused employment-based visa numbers available in the
following fiscal year, as currently occurs for most unused family-sponsored visa numbers. Section 60002
would also recapture any remaining family-sponsored and employment-based immigrant visas that went
unused from FY1992 through FY2021. Applying a methodology used by the Department of State (DOS),
CRS estimates that 247,000 family-sponsored and 194,100 employment-based visas remained unused at
the end of FY2021. The DOS methodology used to produce this estimate appears generally consistent
with the bill’s approach, but the estimate is not based on an exacting interpretation of the bill’s language.
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Section 60002 would also recapture certain unused diversity immigrant visas (DVs) that foster
immigration from countries sending relatively few U.S. immigrants. Because DV demand far exceeds the
INA’s annual limit of 55,000 DVs, applicants are selected by lottery. To receive a visa, selectees must
pass security and medical screenings and be interviewed in-person before their selected fiscal year ends.
Section 60002 would allow DV selectees for FY2017 through FY2021 to remain eligible for DVs if they
were unable to complete the visa application process or were barred from traveling to or entering the
United States on a DV for certain reasons. Those reasons relate to (1) four orders issued by former
President Donald Trump restricting entry of foreign nationals from certain countries and (2) restrictions or
limitations on visa processing, visa issuance, travel, or other effects of the COVID-19 public health
emergency. CRS estimates Section 60002 would make fewer than 80,000 DVs available.
Section 60003. Adjustment of Status
Under current law, foreign nationals with approved immigrant petitions establishing a family relationship
with a U.S.-based citizen or LPR relative, or who are sponsored by a U.S. employer, acquire LPR status
in two ways. Those residing abroad acquire an immigrant visa at a DOS consulate that allows them to
travel and present themselves before an immigration officer at a U.S. port of entry. If admitted, they
acquire LPR status. Alternatively, those residing in the United States on a nonimmigrant (temporary) visa
apply for adjustment of status (AOS) with U.S. Citizenship and Immigration Services (USCIS).
Foreign nationals can receive an immigrant visa or apply to adjust status only if an immigrant visa
number is immediately available. Because demand for immigrant visa numbers far exceeds INA limits,
many foreign nationals residing in the United States are waiting to adjust to LPR status in two queues that
include almost 4 million family-sponsored and 1 million employment-based prospective immigrants.
Section 60003 would allow such individuals to file to adjust to LPR status even if an immigrant visa
number is not immediately available. Filers would have to pay a supplemental fee of $1,500 (plus $250
for every adjusting family member). Filing to adjust status does not grant LPR status, and filers still must
wait for an immigrant visa number before actually adjusting to LPR status. However, filing provides
benefits including continued lawful presence without maintaining nonimmigrant status; flexibility to
travel abroad through advance parole; and eligibility to work for any U.S. employer. Eligible spouses and
children would receive identical benefits.
Section 60003 would also allow the Department of Homeland Security to grant LPR status to certain
AOS filers regardless of visa number availability. Eligible prospective immigrants would have to have
filed their family-sponsored or employment-based immigration petitions at least two years prior to
applying for LPR status under this provision. They would also have to pay a supplemental fee of $2,500
for family-sponsored immigrants, $5,000 for employment-based immigrants (except EB-5), and $50,000
for EB-5 immigrant investors.
Section 60003 would remain effective through September 30, 2031. Until then, current INA annual
numerical limits for family-sponsored and employment-based immigrants would not apply to those using
this provision. A large and indeterminate number of prospective immigrants might meet its eligibility
requirements, and it might alter the decision calculus for all foreign nationals overseas contemplating
education, employment, or permanent residence in the United States over the provision’s eligibility period
(eight years). Therefore, CRS cannot estimate how many would acquire LPR status under Section 60003.
Section 60004. Additional Supplemental Fees
Section 60004 would establish nine supplemental USCIS immigration processing fees ranging from $19
for entering nonimmigrants to $15,000 for EB-5 immigrant investors. Fee revenues would be deposited
into Treasury’s general fund, not set aside solely for USCIS operations as is currently the case.

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Section 60005. U.S. Citizenship and Immigration Services
Section 60005 would appropriate $2.8 billion to USCIS in FY2022 to facilitate application adjudication
related to this bill and to reduce case processing backlogs.

Author Information

William A. Kandel

Analyst in Immigration Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
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