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  • Article: Unused Visas: To Recapture or Not to Recapture - That Is The Question By Tahmina Watson

    Unused Visas: To Recapture or Not to Recapture - That Is The Question

    by


    The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal)  that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action.  One of those issues was apparently to recapture unused visas.

    That issue caught my eye as it has been on my research to-do list for a while.  The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.

    Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):

    If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.

    The law already allows the use of unused visa. So what is all the fuss about?

    Each year 140,000 employment-based immigrant visas are issued. There is a complicated formula to calculate visa distribution.  The questions we should ask are these: (1)  In each fiscal year, do we have a record of how many visas were denied or otherwise not used? (2)  If so, do we know if they were reused within that particular fiscal year? Perhaps the Department of State can shed light on how many were unused from previous years.  Here is a report that lists number of visas issued.

    From discerning all the complicated legal mumbo-jumbo from the statute,  the law basically says unused visas from the previous year will be added on to the current year of visa availability.  From what I can tell, unused visas are generally being put back in the pool.   While I cannot completely understand the numbers in the above linked reports, I believe the information should be available.  Reports from the Wall Street Journal and Politico discuss that 200,000 visas can be recaptured.  I would very much like to know how that number was determined (if anyone reading this article knows, then please do let me know!).

    If indeed there were unused visas in past fiscal years that need recapturing, then do we even need a new law or executive order to recapture them? The law above in black and white clearly says they can be reused.

    Therefore, in my opinion, unused visas- from years past,  can be reissued to other qualifying immigrants. No executive order necessary. Just understanding, implementation and execution.

    I will continue my research and update this article in due course, if my research leads to more worthwhile information. But in the meantime, your question may be- why is this important?

    The Backlog.  The visa backlog is one of the biggest problems our broken immigration system is encountering.  You may often hear the phrase  that people will have to go to the back of the ‘line’ to get their visas. There is no ‘line’ as such but the’ line’ refers to the waiting time to get a visa. People are waiting for years, sometimes, decades to get visas.  The employment-based preference categories have severe backlogs, particularly for China, India, Mexico and the Philippines.  Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, which in turn will help businesses hire the right people, focus on growing their businesses and not worry about whether their employees will stay or leave the US.

    Will the President include this in his list of executive orders? Well, I don’t think an executive order is necessary for the above reasons. But let’s imagine I missed something in my research and it does need an executive order. Will he include it in his list?  Hard to say.  If he is looking for maximum impact, this is definitely one way to make a big difference.  Politically, he is already in a challenging situation by all accounts- the GOP will take issue with whatever he does.  So, why not go for maximum impact and just go big?

    This post originally appeared on Watson Immigration Law Blog . Reprinted with permission.


    About The Author

    Tahmina Watson Tahmina Watson is an immigration attorney and founder of Watson Immigration Law in Seattle Washington. She was a practicing barrister in London, UK, before immigrating to the United States herself. While her practice includes family-based and employment-based immigration, she has a strong focus on immigrant entrepreneurs and start-up companies. She can be contacted at tahmina@watsonimmigrationlaw.com. You can visit www.watsonimmigrationlaw.com to learn about Tahmina and her practice.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      The following is a revised version (posted on August 23) of my previous reponse to the above article. This revision does not make any change in the substance of my previous comment. Its only purpose is to make that comment clearer.

      My colleague Tahmina Watson's above article appears to show a misunderstanding of what the term "unused immigrant visa" actually means, and what needs to be done to reduce the immigrant visa backlog by making unused visas available in subsequent years.

      In support of her argument that existing law already contains a solution to the visa backlog problem, and that all that is needed is "understanding, implementation and execution", Ms. Watson cites INA Section 206, which refers to immigrant visas that have been issued, but not used. This is clear from the language of this provision, which uses the phrase: "If an immigrant having an immigrant visa..." (Emphasis added.)

      Obviously, if someone has a visa, it means that the visa was issued. The above section provides that the visa can be re-issued to someone else if the person whom it was originally issued to turns out to be ineligible to use it, or fails to do so.

      Ms. Watson evidently assumes that this is what is meant by "recapturing" an unused immigrant visa. But the above section would not do anything whatsoever to reduce the backlog which Ms. Watson (and the rest of us) are anxious to eliminate.

      The backlog is not caused by issuing immigrant visas to people who later turn out not to be qualified for them or decide not to use them. It is reasonable to assume that this is a comparatively rare occurrence.

      The visa backlog, and therefore the question of recapturing unused visas, deals with an entirely different issue, namely that of immigrant visas which could have been issued according to the statutory total of available visas each year (140,000, for employment-based visas) but were not issued, mainly because of processing delays.

      INA Section 206, which Ms. Watson cites above as a supposed solution to the backlog problem, has nothing to do with visas which were never issued in the first place. That section would not be of any use in reducing the visa backlog, because it is silent about the real issue, which is that of allowing unissued visa numbers in any given year to "roll over" into a subsequent year or years when they can be used.

      The much discussed 2013 immigration reform bill S.744 (which, of course, was never enacted into law) included a provision, Section 2304, which defined the term "Unused Visa". Even though this bill did not become law, this section is still helpful because it explains what, I believe, is commonly meant by "recapturing" unused visas.

      This section would have amended INA Section 201(d) to include the following provision with respect to employment immigrant visas:

      (3) UNUSED VISAS- The number computed under this paragraph is the difference, if any, between--

      (A) the sum of the worldwide levels established under paragraph 1 for fiscal years 1992 through and including 2013; and

      (B) the number of visas actually issued under section 203(a) during such fiscal years
      (Emphasis added.)

      An identical definition was also included for unused family visas.

      This definition deals with the difference between the number of visas available and the number actually issued. This difference constitutes unused visas which need to be recaptured.

      Section 2304 would have recaptured unused employment and family visas for the above-mentioned years, as defined above. While of course, anything is possible, it is unlikely that the Senate would have included and passed this recapturing provision if there had already been such a statute in existence.

      If anyone can locate such a law (other than the REAL ID ACT, which included some much more limited recapturing) I would look forward to seeing it. INA Section 206 is not that law.

      Roger Algase
      Attorney at Law
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