The Government Wasted At Least 400,000 Visa Cap Slots in FY 2021
The U.S. government imposes limits on the number of immigrants, refugees, and temporary workers who it will admit or grant permanent residence every year. Congress has specified certain limits in statute, while the executive branch creates others. In fiscal year 2021 (October 2020‐September 2021), the government wasted at least 400,000 visa and refugee cap slots.
Table 1 shows the data for visa or refugee caps, used cap numbers, and unused cap numbers. As it shows, the U.S. government wasted 51,089 of 62,500 refugee slots (82 percent), 39,849 of 54,850 diversity lottery green cards (73 percent), 140,000 of 226,000 family‐based green cards (62 percent), 62,000 of 262,288 employment‐based green cards (24 percent), 42,716 of 130,716 H-2B visas (33 percent), and roughly 63,000 of 109,000 J-1 visas under the Summer Work and Travel Program (58 percent). No information is available about the use under other visa cap: the H-1B program, which has a cap of 85,000.
-Refugees: President Trump established an initial refugee cap for FY 2021 of just 15,000. Biden initially kept that cap through May before raising it to 62,500. But even when he raised it, the government directly stated that “we will not achieve 62,500 admissions this year,” claiming that it could not process them that quickly. Ultimately, just 11,411 were processed.
-Diversity green cards: Trump banned all immigrant visas in April 2020 through March 2021. Biden dithered for over a month before finally rescinding this order in late February. But nonetheless, the State Department retained a scheme under which diversity lottery winners were the lowest priority for immigrant visa interviews. As a result, just 15,001 diversity green cards were used in FY 2021 and 39,849 to be unused. About 10,000 of these may be saved thanks to court actions and issued in FY 2022, but all the rest will be lost forever.
-Family green cards: The family‐based categories were subject to the same immigrant visa ban as diversity lottery winners and were the second lowest prioritization under the State Department’s processing scheme. The deprioritization caused them to lose 73 percent of their cap for FY 2021: about 140,000 green cards. This includes visas for spouses and minor children of U.S. legal permanent residents.
-Employment green cards: Since Trump had also banned family‐based green cards for most of FY 2020, about 120,000 green cards were added to the normal employment‐based limit of 140,000. But the Trump State Department refused to allow anyone to apply for green cards until the start of FY 2021, creating a rush that the government could not process using its existing systems. Biden’s team took most of the year to finally speed up the processing, but the delay caused 62,000 employment‐based green cards to be lost forever (unlike family, the numbers don’t get recycled the next year for either the family or employment lines).
-H-2B seasonal nonagricultural workers: The H-2B program has a statutory annual cap of 66,000 visas, but Congress increased that statutory cap by 64,716 in December 2020 for any employer that needs workers (a need demonstrated in the normal course of applying for an H-2B program). Nonetheless, the Department of Homeland Security decided to allow only 22,000 additional H-2B visas to be issued, intentionally and deliberately wasting 42,716 H-2B visas during the most extreme labor shortage on record.
-J-1 Summer Work and Travel Program: There is no statutory cap on the J-1 Summer Work and Travel Program, but in 2012, the Obama administration State Department decided to cap the program—which is for foreign exchange students who are coming to work and visit the United States—at 109,000. In addition, Trump banned J-1 Summer Work and Travel Program visas until the end of March 2021, and Biden kept that ban. He also reimposed a ban on European Union travel, making it impossible to travel for many potential participants. The State Department doesn’t differentiate J-1 Summer Work and Travel from other J-1 programs (like au pairs, physicians, and others), but based on the overall J-1 visa decline from 2019 to 2021, it appears that about 58 percent of the J-1 cap was lost for FY 2021.
-H-1B program: The other capped immigration category—the H-1B program—does not actually track whether all visas authorized under the cap are actually used to enter the country, so it’s not possible to say what the H-1B visa waste was. There were about 70 percent fewer H‐1Bs issued in FY 2021 compared to FY 2019, but this doesn’t include changes of status in the United States, which is a majority of H-1B cap use. Given the H-1B visa ban that lasted until April 2021 and the various travel bans including one on India, there is a high probability that many H-1B visas were wasted.
The Biden administration’s failure to use the allotment of visas, green cards, and refugee numbers available for fiscal year 2021 highlights its failure to significantly liberalize the immigration system, even within the normal legal limits. It is no longer correct to say that “it is early.” But it’s also true that Biden can change course, expand legal immigration, and restore the system to what it should be.