Immigration Provisions in Build Back Better (H.R. 5376)

Pres. Biden’s Build Back Better plan (H.R. 5376) — which Congressional Democrats hope to pass through the budget reconciliation process — would result in the largest amnesty for illegal aliens in our nation’s history, plus more than 1 million additional green cards. Here’s a list of the immigration provisions in the House version of the bill.

The Numbers

Type and Class of Admission
2022

Parole Amnesty1
7,957,000

Recapture of Family-Based Visas2
397,325

Recapture of Employment-Based Visas2
232,539

Recapture of Lottery Visas3
?

Family-Based Waiting List4
242,152

Employment-Based Waiting List4
100,571

Total
9,581,587

The Amnesty (legal status, work authorization, indirect path to citizenship)

Parole- Aliens who entered the U.S. prior to January 1, 2011, receive parole for 10 years (5 years initially, 5
years after renewal), which cannot be revoked without a violation of the few inadmissibility provisions which
have not been waived (see below). Unlike in previous amnesties, there are no additional criminal bars outside of
the criminal inadmissibility provisions in 8 U.S.C 1182(a)(2). Amnestied aliens may use existing pathways to
receive green cards, but do not receive a special pathway.

Amnesty Inadmissibility

The following grounds of inadmissibility are automatically waived:

Aliens with communicable diseases, the unvaccinated, aliens with physical/mental disorders, and drug
abusers;

Public charges or those likely to become a public charge;
Aliens coming to work in the United States when there are willing, qualified, and available US workers,
or when their employment may adversely affect wages and working conditions of U.S. workers;
Aliens present without admission or parole, aliens who failed to attend removal proceedings, immigration
fraudsters, stowaways, and aliens subject to a final order of removal;
Student visa abusers.
Aliens without proper documentation;
Aliens previously removed (within the statutory period barring reentry), aliens unlawfully present, and
aliens present after previous immigration violations;
Guardians accompanying helpless inadmissible aliens; and
Former citizens who renounced citizenship to avoid taxation.

Visa “Recapture” and Waiving Numerical Limits on Legal Immigration
The Reconciliation bill:

Sets the floor for family-preference visas at 226,000 PLUS unused employment-based rollovers from the previous
year.

“Recaptures” so-called “unused” visas from family-based categories, despite the fact that any family-based visas that are unused in one fiscal year automatically roll over into the employment-based categories for the
following year, so there are no unused family-based visas.

“Recaptures” so-called “unused” visas from employment-based categories, despite the fact that any
employment-based visas that are unused in one fiscal year automatically roll over into the family-based
categories for the following year, so there are no unused employment-based visas.

Gives lottery visas to any alien who was denied a lottery visa, prevented from seeking admission, or denied
admission due to former President Trump’s proclamations or COVID restrictions or limitations.

Allows aliens and their dependents to file applications for adjustment of status if they are the beneficiaries
of an approved petition regardless of whether a visa is immediately available to them, for a fee of $1,500, plus
$250 for each beneficiary.

Certain aliens on the green card waiting list for two years or more, and who are physically present in
the United States, can request a waiver from the numerical limitations. This means, for a fee, the
numerical limitations for many immigrants no longer exist. (This provision sunsets on Sept. 30, 2031,
for everyone not yet in the pipeline.)

Those on the family-based waiting list must pay a $2,500 fee per waiver.

Those on the employment-based waiting list as Priority workers, 2nd preference, and 3rd
preference must pay a $5,000 fee per waiver.

Those on the employment-based waiting list as investors (EB-5) must pay a $50,000 fee per
waiver.

Numerical limits continue to be waived until DHS renders a final administrative decision on the
application. If the adjustment of status application is approved, the alien would be issued a green card
that would not be counted against the numerical limitations. If the application is denied, the alien
would remain on the waiting list and, presumably, be subject to the numerical caps.

Fees are supplemented and USCIS gets an additional $2,800,000,000 to adjudicate the amnesties and recapture
provisions.

1 https://www.migrationpolicy.org/sites/default/files/publications/mpi-rethinking-legalization-2021_final.pdf MPI estimates 7,957,000 illegal aliens would be eligible for an amnesty if they had entered prior to January 1, 2010. The Build Back Better Act requires entry prior to January 1, 2011, so the actual number is likely to
2 https://www.numbersusa.com/sites/default/files/public/Biden-Amnesty-10-Year-LPRs_v2.pdf These numbers are artificially low because they do not include the 2020 and 2021 numbers.
3 Since the Department of Homeland Security (DHS) has not released legal immigration numbers for FY 2020 or 2021, we do not know how many lottery visas went unused due to former President Trump’s proclamations or COVID restrictions.
4 https://travel.state.gov/content/dam/visas/Statistics/Immigrant-Statistics/WaitingList/WaitingListItem_2020_vF.pdf These numbers are the result of taking the average share of adjustments (versus admissions) in the visa categories for the three most recent years available (2017-2019) and applying that share to the visa waiting list as of November, 2019. The visa waiting list grew significantly in 2020 and 2021, during the pandemic and the various travel restrictions, so the actual numbers of aliens exempted from the numerical limits is likely to be significantly higher.