Frugality, something second nature to our colonial forebears, is a trait we Americans seem to have forgotten. We are profligate in our material acquisitions and in their disposition. (Witness the growing mountains of toxic electronic waste that are almost as hard to be rid of as spent nuclear fuel.) Saving for a rainy day is not the meme it once was.
Similarly, in the immigration ecosphere, federal officials are just as wasteful of finite resources. Over many years, administrators at U.S. Citizenship and Immigration Services and the State Department’s Visa Office have bungled the distribution of a most precious commodity under their charge — the annual allocation of immigrant visas. Unlike material waste, however, immigrant-visa quota numbers evaporate without a trace rather than linger in the environment. Every September 30, all unused immigrant visas for that fiscal year disappear.
Moreover, unless Congress intervenes, nothing can be done to recapture a green card lost because immigration bureaucrats gave it to the wrong person or otherwise failed to make it available in time to a deserving would-be immigrant.
Unfortunately, “courts are not time machines” capable of undoing immigration-agency mistakes, as the Ninth Circuit Court of Appeals ruled last week in Li v. Kerry. The three judges deciding the case found themselves powerless to help a group of plaintiffs born in China who claimed they were the victims of improper green card allocation by USCIS and the State Department.
Although these agencies reportedly violated a law requiring the conferral of immigrant visas on a first-come, first-served basis, they instead gave green cards due the plaintiffs to other foreign citizens. The judges’ response: Too bad, too sad — for Congress created no penalty or remedy that the courts could apply when immigration officials, however often, misallocate or waste green cards. As Judge Reinhardt noted in his concurrence:
Plaintiffs have identified a significant problem with this country’s system of issuing immigrant visas. . . . [A]ccording to Plaintiffs, our nation’s immigration authorities wrongfully distributed to citizens of other nations over 40% of the available employment-based, third preference (“EB-3”) immigrant visas that, under the applicable statute, should have been made available to individuals from mainland China. These visas—numbering over 2,300—would have permitted applicants from China to live and work in this country as legal permanent residents and to start on a path to United States citizenship at the time intended by Congress. Instead, the government erroneously gave these visas to individuals from other countries, many of whom had been waiting far less time for the same type of visa than their Chinese counterparts. . . .
[W]hat is clear is that during 2008 and 2009 (and likely beyond), as a result of either errors or oversights on the part of the responsible agencies, the immigrant visa system did not function in a manner consistent with Congress’s intent in creating it. Although we dismiss Plaintiffs’ complaint, our decision should not be read as condoning that unfortunate result.
If courts can’t fix the problem, then our elected leaders, having claimed repeatedly to be ultra-concerned about the interests of law-abiding immigrants who have played by the rules and patiently waited in the green-card line, must act.
The solution is not just for Congress to recapture lost green cards, as it did twice before in 2000 and 2005 when passing the American Competitiveness in the Twenty-First Century Act and the REAL ID Act, and as the President has just suggested (“The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas . . . “).
As part of comprehensive immigration reform, Congress should enact a law providing that unused quota-limited immigrant and nonimmigrant visas in any fiscal year should automatically roll over for use in later years. The law should also grant courts the power to craft equitable remedies for persons like the plaintiffs in Li v. Kerry, short-changed by erroneous actions or omissions of immigration bureaucrats, without taking away vested visa benefits already conferred on others.
This new law ought to be a no-brainer. It grants not a single extra visa beyond the quota set by Congress. Rather, it reaffirms that we are not just a nation of immigrants but a frugal people as well.