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MUMBAI: The US House of Representatives has passed the Build Back Better (BBB) Act, which contains key provisions relating to immigration.
What comes next? This is the question upper most in everyone’s mind.
After all, for the highly skilled Indians who owing to the green card backlog have a waiting time of almost 80 plus years (as per Cato Institute’s research), it is vital that the BBB Act, which will help clear this backlog, is enacted.
The Act now moves to the Senate, where it will be discussed and debated. More so, as a first step, the Senate Parliamentarian will also review it to determine whether the provisions are such that can be included in a budget reconciliation/spending bill.
As TOI has pointed out earlier, the Parliamentarian’s post is not an elected one – the role is advisory in nature. If the immigration provisions are found unfit for the reconciliation bill, Kamala Harris, as Vice President, can overrule this ‘guidance’– the moot question is whether Democrats will take such a step.
The Democrats included immigration reforms in a reconciliation bill to tide over the filibuster clause. In the Senate, where there is a 50:50 split between Republicans and Democrats, the filibuster clause would require 60 votes for passage of a bill (which means support is required from the Republicans and is unlikely to be forthcoming). However, reconciliation bill requires a simple majority vote. Yet, immigration experts are unclear on what the future of the BBB Act will be. For now, it is wait and watch.
The two key beneficial issues contained in the BBB Act are:

1. Recapture of unused green card numbers

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The BBB Act, provides for recapturing unused family and employment based green card numbers that were unused from 1992 through 2021. It is estimated that this provision will prevent the loss of nearly 1.5 lakh unused family-based green cards and nearly 1 lakh odd employment-based green cards that expired as of September 30, this year. The BBB Act would also prevent future loss of unused numbers.
Annually the US sets aside only 1.40 lakh green cards for employment-based applicants and there is a 7% per country cap. Given the heavy influx of Indians in the US – majority of them holding an H-1B visa, this restrictive policy poses challenges and has resulted in a massive backlog for them in the employment- based category.
If enacted, it will help thousands of skilled Indians and avoid families from being split up. The long waiting time, has meant that children of many Indian families who were brought to the country as toddlers, age out (when they turn 21), owing to which they either have to transit to a student visa (which has its own issues, such as higher fees, limited work eligibility) or have to deport to another country (such as their home country India). According to an earlier study done by David Bier, a research fellow at Cato Institute, as of April 2020, 1.36 lakh children from Indian families were caught in the EB2 and EB3 employment based green card category backlog, 62% of such children would age out without getting a green card.

2. Jumping the queue, for a price:

The bill would permit a foreign national to submit an application for adjustment of status (transit to a green card) before they reach their place in line under the current rules, on payment of a $1,500 fee (plus a $250 fee for each derivative – family member). Currently, a foreign national can submit an adjustment application only if the priority for their country and immigrant visa category is current.
Exemption can also be sought from the per-country visa quotas and be freed of numerical limitations as outlined below:
a)Beneficiaries of approved family-based green card applications, with a priority date that is more than two years old, can adjust status, for a fee of $ 2,500;
b)Beneficiaries of approved EB-1, EB-2, or EB-3 visa applications (i.e.: employment linked green cards) with a priority date that is more than two years old, can adjust status for a fee of $5,000; and
c)Beneficiaries of approved EB-5 petitions (investment linked green card) with a priority date that is more than two years old, can adjust status, for a fee of $50,000.
The adjustment of status provisions (applicable up to September 30, 2031) would take effect 180 days after enactment or on May 1, 2022, whichever is earlier.

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