Tucked away in the Senate's bipartisan, immigration reform legislation of 2013 was an obscure provision referred to as "recapture." The measure, which directs the State Department to allocate unused visas that failed to be issued due to bureaucratic shortcomings from 1992-2013, would help clear the green card backlog and result in roughly 200,000 -- 250,000 immigrant workers and spouses receiving permanent residency.
Recapturing would quickly provide economic stimulus as talented immigrant entrepreneurs and innovators receive the flexibility associated with green cards, reunite thousands of families who are separated as a result of backlog, and represent real reform to the legal immigration system. The White House is currently reviewing whether the President has existing authority to execute recapture policy absent congressional action -- and there is a strong case that he does.
But Congress ought to step up and pass this provision on its own.
Unlike other components of comprehensive immigration, such as high-skilled reform, which could not pass as standalone bills given the vexing politics of the issue, recapturing unused green cards would not dim the prospects of a larger immigration overhaul. The concept is heavily favored by the business and startup communities and generally supported by labor and religious constituencies (the politics of green cards are less controversial than H-1Bs). President Clinton in 2000 and President George W Bush in 2005 signed into law legislation that included recapturing employment-based immigrant visa numbers.
Most House Republicans are intransigent when it comes to considering comprehensive immigration reform at least until President Obama leaves office -- and recapture would by no means serve as a replacement for reform that addresses the millions of undocumented workers and their families currently in the country, high-skill visas writ large, border security, among other fixes to a broken system -- but that should not preclude Congress from adopting a provision similar to the one included in the Senate's 2013 legislation. Especially when the result is stronger economic competitiveness and reunited families.
For some background: during the second half of the 20th century, two of the country's signature immigration overhauls -- the Immigration and Nationality Act of 1965 and its modified version, the 1990 Immigration Act -- expressly permitted the recapture of unused visas in a given year. Following implementation of the 1990 Act, bureaucratic processing delays, inaccurate workflow predictions, and lack of staffing at the three federal agencies that play a role adjudicating lead to the failure of allocating hundreds of thousands of immigrant visas. As a result, legal immigrants have had to wait years to obtain green cards and are restricted in their ability to change jobs or launch new businesses while family members are separated from one another for longer periods of time.
When President Obama announced his executive action giving unauthorized immigrants protection from deportation in November of 2014, the White House also announced that it would work with agencies to explore how to improve the visa process for legal immigration, including on the issue of recapture. The Administration, in consultation with State and the Department of Homeland Security, may arrive at the conclusion that the President has authority to enact recapture policy on his own, given congressional intent in previous legislation and precedent for the Executive Branch utilizing similar powers in the past. But Congress can ensure there is no question if they send a bill to the President's desk.
Through the course of history immigrants have contributed substantially to U.S. economic growth and entrepreneurship. Around 40% of Fortune 500 companies were started by immigrations or their children and 25% of high-tech firms created since 1995 were started by immigrants, employing 450,000 people and doing $50 billion in sales. According to the Kauffman Foundation, nearly all net-new job creation in the U.S. is produced by startups -- and from U.S. Steel to Google to Chobani Yogurt, immigrants have founded some of the most noteworthy. In 2011, nearly two-thirds of electrical engineering Ph.D and Masters degrees in the U.S. went to foreign nationals. But without a green card, immigrant workers -- and American-educated immigrant graduates -- do not have the flexibility to move between established firms or launch startups. Meanwhile large enterprises face increasing difficulty hiring talented immigrants due to visa challenges, just as many of their competitors abroad contend with no such legal hurdles.
Today is April 1st, the start date for accepting H-1B visa petitions for the next fiscal year. It's also a date that reminds us why it is so critical to pass immigration reform. Recapturing 200,000-250,000 unused green cards is no substitute for a comprehensive overhaul, but for families, businesses, and entrepreneurs it would represent a meaningful step forward.
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