    [Senate Hearing 117-885]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 117-885

                           REMOVING BARRIERS TO LEGAL
                          MIGRATION TO STRENGTHEN OUR
                            COMMUNITIES AND ECONOMY

    =======================================================================

                                    HEARING

                                   BEFORE THE

                     SUBCOMMITTEE ON INTELLECTUAL PROPERTY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 MARCH 15, 2022

                                   __________

                              Serial No. J-117-55

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                                    __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    56-622                     WASHINGTON : 2025

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair

    PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking
    DIANNE FEINSTEIN, California             Member
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                         THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee

                 Joseph Zogby, Chief Counsel and Staff Director
          Kolan L. Davis, Republican Chief Counsel and Staff Director

                    SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP
                               AND BORDER SAFETY

                        ALEX PADILLA, California, Chair
    DIANNE FEINSTEIN, California         JOHN CORNYN, Texas, Ranking Member
    AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
    CHRISTOPHER A. COONS, Delaware       TED CRUZ, Texas
    RICHARD BLUMENTHAL, Connecticut      TOM COTTON, Arkansas
    MAZIE K. HIRONO, Hawaii              JOHN KENNEDY, Louisiana
    CORY A. BOOKER, New Jersey           THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee

                    Alyson Sincavage, Majority Chief Counsel
                     Ryan Raybould, Minority Chief Counsel

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Padilla, Hon. Alex...............................................     1
    Cornyn, Hon. John................................................     3
    Durbin, Hon. Richard J., U.S. Senator from Illinois..............     6

                                   WITNESSES

    Legomsky, Stephen H..............................................     9
        Prepared statement...........................................    36
    Melmed, Lynden D.................................................    13
        Prepared statement...........................................    49
    Rajakumar, Athulya...............................................    11
        Prepared statement...........................................    55
        Responses to written questions...............................    62

                                    APPENDIX

    Items submitted for the record...................................    35

                           REMOVING BARRIERS TO LEGAL
                          MIGRATION TO STRENGTHEN OUR
                            COMMUNITIES AND ECONOMY

                                  ----------

                            TUESDAY, MARCH 15, 2022

                                  United States Senate,
                      Subcommittee on Immigration, Citizenship,
                                           and Border Security,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice at 2:02 p.m., in
    Room 226, Dirksen Senate Office Building, Hon. Alex Padilla,
    Chair of the Subcommittee, presiding.
        Present: Senators Padilla [presiding], Klobuchar,
    Blumenthal, Cornyn, Tillis, and Hirono.
        Also present: Senator Durbin.

                OPENING STATEMENT OF HON. ALEX PADILLA,

              A U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Chair Padilla. Good afternoon, everybody. I call to order
    this hearing of the Senate Judiciary Subcommittee on
    Immigration, Citizenship, and Border Safety. This hearing will
    come to order, and I do thank you all for joining us today.
    This is a hearing to explore some critical and timely issues,
    and I want to thank--start by thanking our Ranking Member,
    Senator Cornyn, and his staff for once again working so
    collaboratively with me and my team in putting this hearing
    together. That's not always a given around here. I want to make
    sure, Senator Cornyn, you know how much I appreciate your
    partnership, both on this Subcommittee and in our other work
    together.
        We're here today to examine the challenges that many
    immigrants face in seeking lawful permanent resident status.
    For more than 200 years, people have come to the United States
    from around the world to seek refuge, pursue opportunity, and
    live the American dream. For generations, the dreams and hard
    work of immigrants have fueled our economy, sparked
    groundbreaking scientific discoveries, enhanced our national
    security, and strengthened our communities. That's why Congress
    has routinely created pathways for people around the world to
    live and work in this country, and to bring their families
    along with them.
        The immigration system that Congress designed to achieve
    those critical goals has failed to keep up with our needs in
    the 21st century. In this hearing, we'll hear testimony on
    barriers to the legal migration that routinely separate
    families across international borders for years. Visa caps that
    keep employers from expanding their businesses and hold back
    the U.S. economy, and arbitrary cutoffs for legal status that
    force children of visa holders to leave the only country
    they've ever known when they age out of their parents' visas.
        The gap between our country's needs and realities of our
    broken immigration system should come as no surprise. After
    all, Congress hasn't passed a significant update to our
    immigration policy in more than three decades. Think about
    that. We're still relying on an immigration framework that was
    last overhauled before the launch of the World Wide Web.
        This has had devastating consequences for hardworking
    families and the economy. Currently, there's a backlog of 1.4
    million people who are eligible for employment-based visas.
    Employment-based visas allow participating immigrants to bring
    extraordinary skills to our workforce, start new businesses,
    create new jobs in rural areas, and to help address worker
    shortages in industries like healthcare.
        Only 140,000 of these individuals can obtain visas every
    year. Because the spouses and children who accompany them count
    against a total, far fewer than 70,000 visas actually go to
    eligible workers. Hundreds of thousands of others are left in
    limbo, restricted by a temporary visa or turned away from their
    dreams, and they're kept from realizing their potential.
        Our immigration laws also cause years of delay for millions
    of family members who are otherwise eligible to join their
    relatives in the United States. The annual cap on family based
    visas is far lower than global demand, with about 7.7 million
    people stuck in our backlog. That means millions of parents and
    children, sisters and brothers, and married couples face years
    or even decades of separation. Wait times are further
    exacerbated by strict limits on how many visas can go to an
    individual country, and the term ``wait time'' for many is
    actually a cruel misnomer. For applicants from some countries,
    the ``wait time'' is literally longer than any human's life
    expectancy.
        It's past time to update our immigration laws to reflect
    the current needs of our Nation. I thank my colleagues who are
    leading commonsense bills to address these unnecessary barriers
    to legal migration. For instance, Senator Durbin, Chair of the
    Judiciary Committee, has the RELIEF Act, which would increase
    the availability of visas to reunite families. Senator
    Menendez's U.S. Citizenship Act would eliminate per-country
    caps, increase the number of green cards through the diversity
    visa program, and recapture millions of previously unused visas
    to reduce green card backlogs. Representative Lofgren's LIKE
    Act would create a pathway for immigrant entrepreneurs to
    strengthen our economy. I've worked across the aisle with
    Senator Paul to introduce the America's Children Act, which
    would create green card opportunities for children who grew up
    in the United States but are now aging out of their parents'
    temporary visas.
        The stakes of this work could not be higher. Professor
    Stephen Legomsky's joining us today to testify about how our
    outdated immigration laws are harming our communities and our
    economy. Mr. Melmed will focus on barriers to skills-based
    migration, and Athulya Rajakumar, a documented DREAMer and
    aspiring journalist, is here to share the story of her family's
    struggle through years of immigration limbo, which contributed
    to her brother's tragic death.
        Athulya, my heart goes out to you and your family, and I
    appreciate you being here and sharing your story. I'm outraged
    by this broken system that you, your brother, and thousands of
    documented DREAMers have had to face. We've organized this
    hearing today because we cannot allow the inaction of Congress
    to continue to cause this suffering.
        The United States was founded as a nation of immigrants,
    and it's time to honor that spirit once again. I know I'm here
    to put in the work. I'm ready to have constructive, productive
    conversations with our Republican colleagues. These issues need
    to be more than just bipartisan in spirit. We must act. We must
    fix this outdated system, and I know we can do it if we work
    together. Now, I want to recognize Ranking Member Cornyn for
    his opening remarks before we get to our witnesses in the
    balance of today's hearing. Senator Cornyn.

                     STATEMENT OF HON. JOHN CORNYN,

                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Senator Cornyn. Thank you, Mr. Chairman. Thank you for
    holding this hearing on barriers to legal immigration. We've
    long known the vital contribution immigrant workers make to our
    economic growth and to our national fabric. Last year in this
    Subcommittee, we heard testimony that foreign-born workers
    often bring special skill sets to the United States, and that
    U.S. economic growth over the last three decades would have
    been significantly lower in their absence.
        That's certainly the case in my home State of Texas, where
    we've benefited from the contributions of foreign-born workers
    in virtually every industry. Just as one example, it's been
    estimated that 30 percent of practicing physicians in the
    Dallas-Fort Worth area are foreign born. Thirty percent.
    Unfortunately, our current immigration system fails to harness
    the full economic potential of immigrant workers. The
    Congressional Research Service recently estimated that, without
    significant change, the employment-based green card backlog
    could exceed two million by the year 2030.
        Indian nationals have been hit especially hard, because our
    system's per-country caps do not allow them to receive more
    than 7 percent of the available employment-based visas in any
    given year. To make matters worse, due to processing
    inefficiencies attributable in part to USCIS's paper-based
    system and to the closures of many of our consulates, we failed
    to issue as many as 92,000 employment-based visas in the height
    of the pandemic.
        Senator Tillis has recently proposed the Preserving
    Employment Visas Act, which would recapture these unused visas
    and allow us to use them to reduce the employment-based green
    card backlog. I'm proud to be a cosponsor of that legislation,
    along with another Member of this Subcommittee, Senator Coons.
        I'd also like to highlight my work with the Chairman of the
    full Committee, Senator Durbin, on the Healthcare Workforce
    Resilience Act, which would recapture as many as 40,000 unused
    employment-based green cards, which would be used--issued to
    doctors and nurses. Many foreign physicians and nurses work on
    H-1B visas while waiting for a green card, and our legislation
    would help reduce that backlog.
        Finally, I'm a proud cosponsor of legislation last Congress
    that would've eliminated the per-country caps for employment-
    based immigrants, ensuring that countries like India do not
    face disproportionately long backlogs. I highlight these bills
    to demonstrate the strong appetite for immigration reform on
    this side of the aisle.
        Unfortunately, the opportunity to act on these and other
    productive pieces of legislation has been completely derailed
    because of the current humanitarian crisis at our southern
    border. Since President Biden took office, we've seen
    historically high levels of illegal border crossings along our
    southwest border. Last month alone, Customs and Border
    Protection recorded 164,000-plus encounters along the southwest
    border, the highest total in more than 20 years, and that's
    just for last month. We know that as the weather warms up in
    the springtime, those numbers will continue to grow and grow.
        In spite of this, the administration doesn't seem to really
    care or take the problem of this crisis at the border
    seriously. Rather than deter would-be migrants with weak asylum
    claims from taking the dangerous journey to the southwest
    border, the administration has rolled out the welcome mat and
    created new incentives to illegally immigrate to the United
    States. For example, the Department of Homeland Security has
    adopted a policy of paroling migrants into the United States
    without first issuing them a notice to appear before an
    immigration judge, the document that formally commences
    immigration court proceedings.
        Unsurprisingly, a large percentage of these migrants don't
    show up and don't turn themselves in to the nearest ICE office
    when they reach their final destination in the United States.
    The Biden administration has also re-implemented and updated
    its Central American Minors program, and now allows migrants
    with asylum claims that were filed on or before May 15th, 2021,
    to petition to have their children brought to the United
    States.
        Two months ago, Senate Democrats asked Secretary of
    Homeland Security Mayorkas and Secretary of State Blinken to
    re-designate El Salvador, Honduras, and Guatemala, for
    temporary protected status. This would give migrants with
    nonexistent asylum claims another avenue for lawful status in
    the United States, and one that is unlikely to be truly
    temporary.
        Senator Sinema, Democrat from Arizona, another border
    State, and I have introduced narrow, targeted bipartisan
    legislation that would help us resolve the crisis on the
    southwest border. It would treat migrants fairly and deter
    those with weak asylum claims from attempting to cross in the
    first place. I'm pleased that Senator Tillis and Senator Hassan
    have joined us as bipartisan cosponsors.
        Democratic leadership could demonstrate that they were
    serious by taking up our Bipartisan Border Solutions Act as a
    first step to get the crisis on our southwest border under some
    semblance of control. There was a brief glimmer of hope last
    year when Senator Durbin, the Chairman of the Full Judiciary
    Committee, convened a working group to explore bipartisan
    immigration reform options. But rather than engage in a
    constructive process that actually produced solutions, Senator
    Durbin prematurely declared those talks a failure, claiming
    that Republicans made unreasonable demands. He advocated for a
    quixotic, partisan, go-it-alone approach that would create a
    pathway to citizenship for 6-to-8 million illegal immigrants.
        This, of course, came without any accompanying measures to
    increase border security or interior enforcement to ensure that
    the undocumented population doesn't accrue yet again.
    Thankfully, the Senate Parliamentarian ruled against this
    effort to go it alone and use the reconciliation process.
    Unfortunately, in taking this partisan tack, our Democratic
    colleagues have poisoned the well when it comes to bipartisan
    immigration reform. It will be difficult to rebuild the trust
    with one another in order to come up with bipartisan solutions.
        Having said that, I am willing to work with anyone,
    Republican or Democrat, to secure our borders and make it
    easier for legal immigrants to contribute to the American
    economy. Our best chance of updating our immigration laws lies
    in putting in the hard work necessary to craft consensus
    bipartisan legislation that make more targeted choices. As long
    as our colleagues across the aisle insist on a purely partisan
    measure with massive scope, the Senate will do what we have
    done for almost the entire time I've been here in the Senate,
    which is never fail to fail.
        I'm looking forward to the testimony today about the
    changes that would be suggested here to harness the full
    economic potential of our immigration system. I know that while
    we don't agree on every proposal today, Mr. Chairman, I hope we
    can continue to find common ground where we can. Mr. Chairman,
    may I say a word about Mr. Melmed, my--the third witness.
        Lynden Melmed is the third witness here today and a partner
    in the Berry Appleman & Leiden law firm here in DC. Before
    joining that firm, Lynden served as chief counsel of the U.S.
    Customs and Immigration Service, the agency's highest ranking
    legal position. As chief counsel of USCIS, Lynden managed a
    legal team of about 130 lawyers, and was a key advisor to
    senior leadership within USCIS, DHS, and the White House and
    other Federal agencies on all aspects of immigration law.
        Before he--before his role in USCIS, Lynden served as my
    immigration counsel when I was Chairman of this Subcommittee,
    and I value his counsel and advice on all matters pertaining to
    the subject matter of today's hearing. It's good to have you
    back again with us here, Lynden, in the Judiciary Committee.
    I'm sure the entire Subcommittee will benefit from your
    excellent counsel as I have in the past. Thank you very much.
        Chair Padilla. Thank you, Senator Cornyn. Before
    introducing the other two witnesses, I want to recognize
    Chairman Durbin for some remarks. Even before that, Senator
    Durbin, a couple comments on Senator Cornyn's remarks. I just
    want to make sure that we're not conflating two different
    dynamics here.
        Someone coming to the United States seeking refuge or
    asylum is very different than the case, that we're going to be
    hearing a perfect example of it today, of a young person who is
    here, who has been here lawfully as a child of an immigrant
    whose--has a lawful, employment-based visa and stuck waiting,
    stuck in a backlog so long that they age out of those
    protections with no means of changing status. I just want to
    make sure we don't conflate very different scenarios.
        As it pertains to the asylum system, it's important to
    recognize the asylum system is indeed a legal migration
    pathway. People who come to our border fleeing persecution and
    seeking protection have a legal right to ask for asylum. It may
    not be guaranteed, but they have a right to ask for it. Those
    who are able to establish a valid claim are allowed to stay
    here permanently and seek a green card after a year.
        There is a notion that immigrants are misusing the asylum
    system by filing false claims. The fact is false claims made by
    asylum applicants are extremely uncommon. In fact, 99 percent
    of all asylum seekers do appear for their hearing. Finally,
    expanding and increasing legal immigration avenues for family
    reunification, employment opportunities, and humanitarian
    relief would help disincentivize unauthorized immigration. I
    think it just continues to underscore the complexities of our
    immigration system and our need for modernization. With that,
    Senator Durbin.

                  STATEMENT OF HON. RICHARD J. DURBIN,

               A U.S. SENATOR FROM THE STATE OF ILLINOIS,

        Chair Durbin. Thank you, Mr. Chairman. Thank you to the
    witnesses for being here today. Is there anyone in America who
    is not following what's going on in Ukraine? Turn on the
    television, every single day, for another heartbreaking scene.
    You wonder about those poor people. Those families at the train
    station or the mother holding the baby that's kissing her
    husband goodbye and wonders if she'll ever see him again. She
    takes that train, most times, to Poland. An interesting thing
    has happened. Poland now has received about 1 1/2 million
    refugees from Ukraine.
        We estimate that 3 million Ukrainians have left their
    country, 3 million refugees. Polish Ambassador spoke to us last
    week in a meeting, and he said, ``I hope you've noticed
    something. We don't have any refugee camps in Poland. The
    people who get off that train are greeted by Polish families
    who bring them into their homes. They welcome these refugees.''
    They're not the only country in Europe that does that. There
    are only 5 million people living in Ireland. They've agreed to
    accept 100,000 Ukrainian refugees.
        You look at the United States of America, and you wonder,
    how would we have reacted to this situation? Three million
    displaced people in Ukraine out of a 40 million population.
    What is a comparable number in the United States? It's the
    State of Texas. Twenty-nine million people, if they were, in a
    matter of 3 weeks, displaced from their home and sent out
    around the Nation, around the region, trying to find a place to
    call home, would America respond? Would we open our doors to
    those refugees?
        I just suspect it's possible that many of the European
    countries that are accepting Ukrainians are accepting people
    who, by and large, look like them. By and large, have their
    same types of religion and culture and background. It's a fact
    of life that, when it comes to choosing refugees who are
    acceptable, we are much more caring when they look like our
    own. When they don't, we're not as welcoming.
        I hope that the United States will show, not just by
    appropriated funds, but by appropriated values, that we share
    the feeling of the people of Poland and others. Not just for
    these refugees, but for other refugees.
        There are some among us who just say, flat out, ``Make no
    mistake. I don't want a single one coming into this country. I
    don't want another immigrant, not one. If you're going to come
    up with ideas on how to bring more immigrants into this
    country, count me out.'' We have colleagues just like that. I
    know, I've spoken to them. I've listened to them. I've watched
    them over the years. Colleagues who never vote for an
    immigration bill, would not even consider it. I just don't
    understand that. We are a nation of immigrants. My mother was
    an immigrant. I'm proud of that fact. Her naturalization
    certificate sits behind my desk because it defines who I am and
    where I come from. We haven't updated this legal immigration
    system in America in, now, 32 years. Thirty-two years.
        In 2013, we tried to change it. I worked with a group of
    eight, led by John McCain and Schumer and Menendez and Bennett
    and Graham--I'm missing some here along the way. Senator Flake.
    We passed a bipartisan comprehensive immigration bill. Some
    Republicans wouldn't even vote for that, even though it
    contained more money for border security than we have ever
    appropriated. The bill passed the Senate 68-to-32. It provided
    a path to citizenship for millions of immigrants with deep
    roots in this country. I thought it was the answer. Republicans
    wouldn't consider it in the House, wouldn't even take it up. It
    would've established new protections for American workers,
    would've cleared the green card backlog, which is one of the
    reasons we're here today, and it would substantially increase
    future legal immigration. As I said, it wasn't taken up in the
    House. Then came the Trump administration.
        We saw unprecedented attacks on legal immigrants, the
    Muslim ban, the lowest refugee admissions targets for the
    United States of America in decades. You know what inspired us
    to create refugee admission targets in the United States? Our
    reflection on what we did during World War II, turning away the
    SS St. Louis, with hundreds of passengers, Jewish people,
    trying to escape the Holocaust in Europe. We turned them away.
    Many of them went back to Europe to die in the Holocaust.
        After that experience, we said as a Nation, ``That isn't
    what America's going to be in the future. Both parties are
    going to stand up and speak up for refugees in admissions into
    this country.'' We did it, consistently, until the last
    President.
        Last year, I convened a bipartisan immigration negotiation
    that dragged on for months. Senator Cornyn was speaking to it
    when I entered the room, so I didn't hear all he said, John, so
    I won't dwell on it. I was disappointed, because there were
    just people who were sitting at that table who wanted not one
    more immigrant. Maybe it's partisan on my part, maybe it is,
    but I believe we're a nation of immigrants and we would be
    stronger if we had them.
        One of those significant challenges that the Chairman of
    this Subcommittee just addressed, that's the lack of green
    cards. The numbers are stunning. Four million future Americans,
    4 million, are stuck in the family green card backlog overseas.
    Many of them are family members who want to be reunited with
    their families. I thought we were for family values. We changed
    that family migration into something called chain migration,
    and many of it--many people among the Senate Membership look on
    it in a negative way.
        With 4 million family members waiting to be reunited with
    their families overseas, how many family green cards do we
    issue each year? Two hundred twenty-six thousand. Do the math.
    More than 875,000 immigrants are stuck in the employment green
    card backlog in the United States. Eight hundred seventy-five
    thousand. We issue 140,000 employment green cards per year.
        One of the most heartbreaking consequences of the green
    card backlog is its impact on innocent children, and I know
    we're going to hear about that today. They've grown up in
    America. They believe this is their home. They want to be part
    of its future. They're college students. They're bright and
    ready to go. Current law strips them of their legal status when
    they reach the age of 21. As a result, they are, quote, ``aging
    out'' at 21.
        Athulya Rajakumar, and forgive me if I didn't pronounce
    your name correctly, one of our witnesses, is just such a
    person. Remarkable persistence despite tremendous obstacles.
    We'd be a better nation if you were a citizen here, and I hope
    we can make that happen. That's why I'm proud to sponsor
    Chairman Padilla's bipartisan bill, America's Children Act,
    which would provide a path to citizenship to you.
        I also commend my House colleagues for including a path to
    citizenship for so-called documented DREAMers. I introduced the
    DREAM Act 21 years ago in this room. Before that, if you asked
    people, ``Who are the DREAMers?'' they'd say, ``They're a
    British rock group, weren't they?'' No. They're a lot of young
    people who, for over 2 decades, have been looking for a chance.
        I've also introduced the RELIEF Act, which is based on the
    bipartisan 2013 comprehensive immigration bill. It will lift
    the arbitrary country caps that limit the number of green cards
    that go to immigrants for any single country in a given year.
    We need to help everyone stuck in a green card backlog, which
    is why this act would clear the backlog in 5 years. Not 20, 5
    years. Keep American families together.
        Also working closely with the House Judiciary Committee on
    the legal immigration reforms in Build Back Better. I hope the
    Senate will pass some measure like that this year. Though we
    have our disagreements, I want to thank Senator Cornyn for
    partnering with me to introduce the bipartisan Healthcare
    Workforce Resiliency Act. John, I don't know if you checked the
    cosponsorship lately. We're doing pretty good. I think we've
    got a chance to pass that. Addresses the plight of immigrant
    doctors and nurses stuck in the green card backlog.
        Strengthening our immigration system will make us a better
    country. Opening our doors to refugees will remind us of the
    goodness of the American people. Let's get the job done. Thank
    you, Chairman Padilla.
        Chair Padilla. Thank you, Senator Durbin. I want to lay out
    the mechanics for the rest of today's hearing. After I
    introduce and swear in the witnesses, they'll each have 5
    minutes to make their opening remarks. We'll then begin our
    first round of questions, and each Senator will have 5 minutes.
    I ask Senators to please try to remain within your allotted
    time. Now, our witnesses.
        Let's start with Professor Legomsky. Professor Stephen
    Legomsky is the John S. Lehmann University Professor Emeritus
    at the Washington University School of Law in St. Louis.
    Professor Legomsky took a leave of absence from 2011 to 2013 to
    serve as chief counsel of U.S. Citizenship and Immigration
    Services, the immigration services agency in the U.S.
    Department of Homeland Security. After retiring in July 2015,
    he returned to Washington to serve as senior counselor to
    Secretary of Homeland Security Jeh Johnson. He has served as a
    member of President Biden's transition team, and as a
    consultant to the transition teams of Presidents Clinton and
    Obama, the first President Bush's Commissioner of Immigration,
    the U.N. High Commissioner for Refugees in Geneva, and several
    foreign governments on immigration and refugee policies. He has
    testified before Congress many times while in the private
    sector, and his book, Immigration and Refugee Law and Policy,
    has been the required text at 193 law schools.
        Today we also welcome Athulya Rajakumar. Ms. Rajakumar is a
    23-year-old recent graduate of the University of Texas at
    Austin, from the Moody College of Communication. Originally
    from India, she came to the United States when she was 4 years
    old, as a dependent of her mother's visa. Ms. Rajakumar grew up
    in Seattle, Washington and now resides in Dallas, Texas. She
    has completed her entire education from 1st grade to her
    bachelor's degree in the United States.
        Senator Cornyn has already introduced Mr. Melmed, so with
    that, I would ask each of the witnesses to please rise and be
    sworn in.
        [Witnesses are sworn in.]
        Thank you. You may be seated. Let the record reflect each
    of the witnesses responded in the affirmative. With that,
    Professor Legomsky. Let's go ahead and proceed with your
    opening statement.

                   STATEMENT OF STEPHEN H. LEGOMSKY,

               PROFESSOR EMERITUS, WASHINGTON UNIVERSITY

                   SCHOOL OF LAW, ST. LOUIS, MISSOURI

        Professor Legomsky. Thank you for the privilege of
    testifying before you today. It's now been more than 30 years,
    as several of you have now said, since Congress has last
    meaningfully updated the numerical limits on legal immigration.
    As you know, massive backlogs have now accumulated. Those
    backlogs have needlessly diminished so many of the benefits
    that immigrants bring us. My view, for all the reasons
    contained in my written statement, is that the U.S. could and
    should significantly increase the number of immigrants whom we
    admit each year.
        Whether or not one shares that view, I think there are four
    things that Congress can do now that would not increase total
    immigration, but would put a serious dent in the backlog and
    shorten the long waiting periods faced by qualified immigrants.
    These four measures don't change any of the individual criteria
    for admission as a lawful permanent resident, an LPR. They
    would, however, simply allow those immigrants who eventually
    will be admitted anyway to be admitted sooner rather than
    later. They would affect the timing of the given person's
    admission, but not the overall long-term numbers.
        As you know, the statute contains formulas for computing
    the annual worldwide caps on family sponsored and employment-
    based immigrants. My first set of proposals calls for three
    changes to those formulas. Increasing the base numbers of
    480,000 and 140,000 respectively, recapturing all the visas
    that Congress has authorized but that have gone unused because
    of bureaucratic delays since the start of the current system in
    1992, and, in the family sponsored program, repealing the
    present deduction for the previous year's admission of
    immediate relatives.
        Second, one of the family sponsored subcategories consists
    of the so-called 2As. These are the spouses and the unmarried,
    under age 21 children of LPRs. At the moment, except for the
    across-the-board administrative processing delays, there's
    actually no waiting period for 2As. It hasn't always been that
    way, and there's no guarantee it won't become that way again.
        At times, 2As have had to wait as much as 5 1/2 years to
    join their nuclear families in the U.S.; even longer if they
    are from Mexico. This is an especially serious problem, because
    the petitions are usually filed soon after the sponsoring LPR
    is married or have children overseas. To be clear, for the most
    part, the people we're talking about here are newlyweds being
    separated for the first several years of their marriage, and
    parents being separated from their newborn babies for the first
    several years of the child's life. My second proposal,
    therefore, is to reclassify the 2As as immediate relatives,
    thus freeing them from the numerical limits that have given
    rise to these long delays. The humanitarian concerns are
    obvious, and my written statement contains several additional
    practical reasons to address these separations.
        Third, the current law also limits the number of qualified
    immigrants who may be admitted from any one country in a single
    year, as has been noted. The current per-country caps have
    produced extreme results, including very long waiting periods
    for Mexican and Filipino immigrants in the family category, and
    for Chinese and Indian immigrants in the employment category.
    My third proposal doesn't require repealing these per-country
    caps, although I personally would be in favor of doing so. It
    does call for raising them.
        My fourth proposal concerns lawfully admitted temporary
    workers, mainly the H-1Bs, whose petitions for employment-based
    LPR status have been approved, but who have been wait-listed
    for actual adjustment of status. This proposal would allow them
    to file their adjustment applications a certain amount of time
    in advance, to give UCSIS a head start on the processing.
        The fifth and final proposal, unlike the first four, would
    extend eligibility to some individuals who are currently
    blocked. It would repeal the various provisions that bar people
    from the U.S. for 3 years, for 10 years, or in some cases, for
    life because of past--not current, but past--unlawful presence.
    My own view is that the harshness of these bars is inherently
    disproportionate to the offenses that they mean to punish.
        The most severe consequences of these provisions fall on
    those immigrants who have been unlawfully present at one time
    or another, but who now satisfy all of Congress's substantive
    eligibility requirements for immigrating to the United States.
    By that I mean, they fall within one of the categories
    established by Congress: family, employment, etc. They don't
    fall with any inadmissibility grounds created by Congress, and
    they have waited their turn in line to the point where their
    priority dates are now current. For them, these bars create a
    procedural Catch-22.
        As my written statement explains, and I'll be happy to
    elaborate further if there's interest, they meet all these
    substantive requirements, but there's simply no place they can
    go to actually file their applications. For various reasons,
    they can't apply overseas. For various other reasons, they
    can't apply here in the United States as well. Again, I will be
    happy to elaborate. Thank you all once more.
        [The prepared statement of Professor Legomsky appears as a
    submission for the record.]
        Chair Padilla. Thank you, Professor Legomsky. I turn to Ms.
    Rajakumar for your testimony.

                    STATEMENT OF ATHULYA RAJAKUMAR,

                  GRADUATE OF THE UNIVERSITY OF TEXAS

                        AT AUSTIN, DALLAS, TEXAS

        Ms. Rajakumar. Chairman Padilla, Ranking Member Cornyn, and
    Members of the Subcommittee, thank you for the opportunity to
    share my story. My name is Athulya Rajakumar. I'm a recent
    graduate of the University of Texas at Austin. I'm also a
    member of Improve the Dream, a youth-led organization that
    supports and advocates for over 200,000 young immigrants who
    grow up in the United States with a documented status but face
    self-deportation after aging out of the immigration system.
        I am a documented DREAMer. I was born in India, and when I
    was four and my brother was six, my mother left an abusive
    marriage in search of a better life for us. After graduating
    from San Jose State University, she secured a full-time job and
    was able to acquire a work visa. Eventually, in 2012, she was
    able to apply for her green card with me and my brother as her
    dependents. After nearly a decade in the green card backlog, I
    aged out in January 2020, when I turned 21.
        My single mother worked hard to support me and my brother
    on her own. Things were hard, but still, I remember making
    happy memories while building our new life, like eating red,
    white, and blue popsicles on 4th of July, driving through
    neighborhoods to look at Christmas lights, and watching my
    first baseball game at the Nationals' stadium just a few miles
    from here. These experiences, uniquely American, are not only
    unforgettable, but a part of who I am today.
        I learned very young that every aspect of my life would be
    controlled by my status. I could not participate in my high
    school's AP French exchange program, even though I was
    president of the French club, because I could not leave the
    country and guarantee a return. When I applied to colleges, I
    was considered an international student even though I completed
    1st through 12th grade in America. I had to answer questions
    like, ``What can you contribute to our institution as a
    resident from your country?'' I grew up in Seattle. Starbucks
    was founded there. I didn't know how much more American I could
    get.
        I also could not qualify for any Federal or university
    financial aid. Regardless, I worked hard, earned good grades to
    get direct admission into my dream program at Moody College of
    Communication's Journalism School, to pursue my long-term goal
    of becoming a journalist so I could use my voice to bring
    awareness to important issues.
        My brother and I were forced to raise ourselves because my
    mother was always working, not only to provide for us, but also
    to retain our visa status. Due to this uncertainty and anxiety,
    we both faced severe mental health issues, my older brother to
    a worse extent. He should've been pulled out of school, given
    proper medication and counseling, and at times I felt he
    should've been institutionalized. However, as H-4 dependents,
    we legally needed to be enrolled as full-time students to
    remain in this country. Though my mother wanted to quit her job
    and stay home with him, risking her job meant risking our
    entire life here.
        After college, he took the LSAT, in which he scored in the
    98th percentile and got into some of the best law schools in
    the country. We thought, if we cannot fight the immigration
    system, maybe we can work to help change it. His goal was to
    become an immigration lawyer and speak out for this group of
    children that America cannot see or refuses to recognize.
    However, the day before his orientation at the University of
    Washington, he took his own life.
        Our entire family was torn apart, and our worlds were
    turned upside down. I flew home and went from writing a school
    paper to his obituary in less than 24 hours. The most cruel
    part of this tragic situation was that we were not even given
    the proper time to mourn. Within 1 week, I was back in college,
    and by the end of the month, my mother had to be back at work.
        Once again, our visa status controlled our lives, even when
    one of us was dead. I can only describe his life as simply
    existing. Not living, but surviving. I'm 23 years old, I should
    be excited about my goals, but I'm scared because I know
    they'll be taken away from me by something I cannot control. I
    got a full-time offer from a major news corporation in Houston,
    a top ten market, but the same company who saw my potential
    withdrew their offer the second they heard about my visa
    status. Worst of all, being considered an alien, an outsider,
    in the only place you know to call home, is a different kind of
    pain.
        Without a change, in 8 months, I will be forced to leave
    not only my home of 20 years, but also my mom, who is my only
    family left. Over 5,000 documented DREAMers face this every
    year. Aaron, a nursing graduate, was forced to self deport last
    summer in the midst of a pandemic. Rutha, a data analyst
    student, was forced to self deport 2 months ago. Summer will be
    forced to self deport in 4 months, even though her family has
    legally resided here since she was a baby.
        Members of Improve the Dream hope that one day everyone who
    grows up in America can become an American citizen and fully
    contribute to our country. Members of this Subcommittee can
    make this a reality by passing America's Children Act, a
    bipartisan bill that would permanently end aging out and ensure
    that children like me, who are raised and educated with a
    documented status, receive a clear opportunity to apply for
    permanent residency. This bill would create a reality that most
    Americans likely assume already exists. The Subcommittee should
    also address root causes that lead to aging out, including the
    green card backlog and the flaws in our system that allow for
    lawful, long-term residence without any clear path to
    citizenship.
        Though the immigration system has constantly tested my
    faith, I am thankful my mom brought me here. We are Americans,
    and all we hope is to be recognized as that, to finally give
    meaning to the lives that we have lived here so far. I hope you
    can improve the dream for all of us. Thank you.
        [The prepared statement of Ms. Rajakumar appears as a
    submission for the record.]
        Chair Padilla. Thank you, Ms. Rajakumar. It takes courage
    to share your story. It's beyond moving. I know your mother is
    with us today, and I want to thank her for her courage as well.
    Mr. Melmed.

                     STATEMENT OF LYNDEN D. MELMED,

                      PARTNER AT BERRY APPLEMAN &

                         LEIDEN, WASHINGTON, DC

        Mr. Melmed. Thank you, Chairman Padilla. Ranking Member
    Cornyn, good to see you. Appreciate the opportunity to testify
    today.
        As the Chairman mentioned, my testimony is going to focus
    on barriers to skilled immigration. If you ask any company in
    any industry today where Congress should place its efforts on
    addressing that problem, you will encounter something rare in
    immigration debate: consensus. Almost all companies agree that
    the lengthy green card backlog and related per-country limits
    make it difficult to attract and retain high-skilled
    immigrants.
        When I joined the Government in 2002, not a single
    employment-based immigrant, irrespective of nationality, had to
    wait for a green card number. Two decades later, it is
    estimated there could be as many as 1.4 million employment-
    based immigrants in the backlog, and nationals of India and
    China face decades long wait times. Compounding the outdated
    numerical limits, hundreds of thousands of green card numbers
    have been wasted because the agency was unable to use them
    within the fiscal year. Last year, approximately 80,000
    numbers--although I heard earlier, maybe more than 100,000
    numbers--went unused. Halfway through the current fiscal year,
    the data suggests the agencies will fall short again, perhaps
    by an even bigger amount.
        I'd like to pause on this point. Agency processing capacity
    now has a larger impact on immigration levels and flows than
    any legislation passed by Congress in the past few decades. The
    agencies have legal authority to remediate prior shortfalls.
    There's legislation that I know many Members here have
    introduced and sponsored, and I encourage Congress to address
    that issue.
        Lengthy green card wait times have near-term and long-term
    consequences for U.S. competitiveness. Knowing that they will
    have to wait decades for a green card in the U.S., highly
    skilled foreign nationals are increasingly taking their talents
    to other countries, including Canada. Toronto now leads the 30
    top tech markets for job growth in the U.S. and Canada, and
    Vancouver ranks third. A key component of Canada's job growth
    is its willingness to grant permanent residence to high-skilled
    immigrants without delay.
        Fifty-six percent of new immigrants to Canada will enter
    through economic channels. In contrast, only 6 percent of legal
    immigrants to the U.S. enter through economic channels. There
    is, however, one essential way that the U.S. employment-based
    system is superior. Our employer sponsorship model is very
    efficient at aligning immigrant skills with a labor market,
    which reduces the likelihood that the country will admit highly
    skilled workers that end up underemployed.
        As you heard earlier, the green card backlogs place
    employees and their families in very difficult and heart
    rendering situations. Many high-skilled immigrants from India,
    including those who graduate from U.S. universities and work in
    critical STEM fields, will face the choice of leaving the U.S.
    or remaining on a temporary work visa for their entire life.
    Those outcomes are inconsistent with our country's values, but
    they also undermine our economic interest. The U.S. is losing
    key employees and limiting the career progress of those that
    remain in the system at a time when there is already a
    shortfall and record unemployment, particularly in computer-
    related occupations.
        Furthermore, the children of green card applicants can age
    out, as you heard earlier. There's little that I can add to Ms.
    Rajakumar's powerful testimony, other than to validate that the
    legal options for documented DREAMers are few and far between.
        Finally, I wish to call attention to how the green card
    backlog relates to processing delays at the agencies. High-
    skilled workers in a backlog must repeatedly extend their
    status and work and travel documentation, often for years on
    end. The family of a high-skilled immigrant will file multiple
    applications while waiting in that backlog. Today the
    Government often takes over a year to process a simple
    employment authorization document.
        Not only does that processing time force business
    disruption on thousands of companies and workers, but those
    extra applications get added to a case processing backlog that
    is really difficult to get your head around. In 2013, the
    agency had 3 million pending applications. Today, that backlog
    exceeds 9.5 million and is expected to grow. I raise this
    because I'm often asked how the agencies can address processing
    delays, and it is clear to me that the Government can't keep
    doing the same thing as they did in the past and hire its way
    out of the problem. Congress and the agencies should focus on
    how immigrants move through the system and eliminate
    unnecessary steps and bureaucracy.
        In closing, I want to thank the Committee for calling
    attention to this important issue. I outlined several policy
    options for Congress and the agencies to consider, and I look
    forward to answering your questions.
        [The prepared statement of Mr. Melmed appears as a
    submission for the record.]
        Chair Padilla. Thank you, Mr. Melmed. Thank you to all
    three of you for your testimony. Now questions from the
    Committee.
        A major failure of the U.S. immigration system is the
    failure to consider the fate of the children of temporary visa
    holders. While their parents have applied for green cards,
    applications remain stuck in years-long backlogs. There are
    currently over 250,000 children of long-term temporary visa
    holders who are at risk of aging out from the protection of
    their parents' status. These are individuals who, like Ms.
    Rajakumar, have grown up in the United States, have contributed
    greatly to their communities, and who are unmistakably
    American.
        For these documented DREAMers, as they're called, there are
    almost no pathways to remain in the country after aging out of
    their parents' visas. When they turn 21, they face the
    impossible decision of leaving their families to return to a
    country that is often completely foreign to them or living
    undocumented in the shadows.
        I introduced the bipartisan America's Children Act, which
    would create green card opportunities for these children, and
    fix this often overlooked inequity in our immigration system.
    Ms. Rajakumar, again, thank you for sharing your story with us.
    If I may, can you explain how the enactment of the bill--I know
    you're familiar with it--how it would impact your life, and
    what having a pathway to citizenship would mean to you.
        Ms. Rajakumar. First and foremost, what comes to my brain
    is that my mom and I would not be immediately separated.
    Second, it would allow me to pursue my desired career path,
    gain experience, and while these are tangible things I can
    point out, the biggest thing it would do is allow me to build
    my life here permanently and contribute to the place that I've
    called home for 20 years without fear that it would be taken
    away from me.
        Chair Padilla. Thank you. Second question is for Mr.
    Melmed. Do you think it makes sense for immigration system to
    allow children to be brought here on their parents' visa,
    raised and educated here, oftentimes for decades, but not have
    a clear opportunity to become an American citizen because their
    parents' green card petition is stuck in the backlog?
        Mr. Melmed. Chairman, it doesn't make sense, and if I could
    add a couple of additional points----
        Chair Padilla. Make sure your microphone is on.
        Mr. Melmed. Chairman, it doesn't make sense, and if I could
    add additional points to that question is that the backlog that
    they are experiencing was not contemplated by Congress
    previously. Backlogs are not new to the immigration system. You
    can say, in fact, that 70 years ago, there were backlogs in the
    immigration system. Congress has, on multiple times, enacted
    relief for children who are aging out. This particular group
    that Ms. Rajakumar is part of was not considered because those
    backlogs didn't exist at the time that Congress previously
    considered this issue.
        The second, very sympathetic factor about the situation
    that they encountered themselves in is part of my testimony, is
    that these backlogs didn't exist as recently as 2013. At the
    time that the parents enter the country on the temporary work
    visas, it wasn't like they could have known. None of us really
    necessarily foresaw the explosion in those backlogs over the
    ensuing decade.
        As I did mention, Congress has wrestled with this issue
    before. There's been various policy solutions, including in
    some situations, freezing their age, and other times using a
    formula to back out agency processing times to afford relief.
    There are a few options for Congress to consider to provide
    relief, and they can look at prior legislation perhaps as a
    road map.
        Chair Padilla. I share your observation, not just on this
    particular dynamic, but more broadly. What's clear from today's
    testimony is that our immigration laws are outdated and no
    longer serve the purpose for which they were created. Reforming
    our family, employment, and diversity visa systems would be in
    the best interest of our economy and our communities. Professor
    Legomsky, in your testimony, you highlighted several ideas to
    help reform the system and reduce the harmful backlog.
        I'd like to ask specifically about the idea of
    reclassifying spouses and unmarried children of legal permanent
    residents who are applying for family based green cards. Right
    now, those individuals are subject to the arbitrary numerical
    limits, but your suggestion would be to classify them as
    immediate relatives, a category of relatives that is not
    subject to the numerical caps. Professor, can you explain why a
    fix to this category of family based petitioners would have
    significant impact on reducing the backlog?
        Professor Legomsky. Thank you, Mr. Chairman. I think my
    strongest reason for feeling this would be a good fix just
    focuses on who these people are in reality. As I mentioned
    during my original remarks, these are people who petitioned for
    their spouses--for their new spouses or their newborn babies
    sometime after becoming an LPR.
        I should explain that if you are admitted as an LPR, the
    current law does allow you to bring with you your accompanying
    spouse and under age 21, unmarried children. The problem is
    that if you immigrate as an LPR and then you get married to
    someone who is not a citizen, or then you get married to
    someone and have a baby overseas, those children and spouse
    fall into the 2A category rather than the accompanying
    category. Although there currently is no wait as I mentioned,
    there were very long waits before.
        The reason I focus on who these people are is that, because
    the petitions are filed typically soon after the event, we are
    talking about separating newlywed couples and separating
    parents from their newborn babies for the first several years
    of their lives. My guess is that people of all political
    stripes would recognize this to be a serious problem, a
    particularly heartbreaking one. There are a couple other
    practical reasons as well.
        One is that, since the family members cannot come here
    until their visa numbers come up, if the LPR wants to maintain
    any semblance of a family life, what that person is going to
    have to do is periodically and frequently travel overseas to
    visit his or her family members, often at great disruption to
    the person's job, often at great expense. Third, and I know
    this will be a little more controversial, it seems to me that
    when the waits do become this long, you're practically inviting
    illegal immigration.
        I want to be clear that I'm not advocating illegal
    immigration. I'm simply calling attention to the reality that
    human nature will have to be remade before newlywed spouses
    willingly separate for years at a time at the beginning of
    their marriage. Human nature will have to be remade before
    parents willingly separate from their newborn babies for the
    first several years the child's life. My guess is that most of
    us in this room would not do so. These are compelling--
    particularly compelling circumstances for the family sponsored
    2As.
        Chair Padilla. Thank you. Senator Cornyn.
        Senator Cornyn. Ms. Rajakumar, it's nice to meet you. I
    hate for it to be under these circumstances. I certainly am
    sympathetic to your conundrum and those others like you that
    have aged out of the H-1B system. I'd like to work with Senator
    Padilla on the legislation he's introduced to come up with a
    solution.
        I'm very sympathetic to not only your situation, but for
    the other immigrants who've come here as children, known
    sometimes as the DREAMers, sometimes as DACA recipients for the
    Deferred Action on Childhood Arrival memorandum that President
    Obama issued 10 years ago, which continues to be caught up in
    litigation, which is a reason why that sort of executive action
    is a bad way to do immigration reform. I voted for a bill that
    contained other elements, maybe, sure, but which provided a
    pathway to citizenship for 1.8 million DREAMers or DACA
    recipients. Unfortunately, it failed in the Senate, which has
    been the story since I've been in the Senate.
        We, Congress, has never been successful in getting an
    immigration reform bill to the President's desk for his
    signature since I've been here. I think that should be an
    embarrassment to us all. Mr. Melmed, let me ask you two
    questions.
        First, is the problem of H-1B dependents aging out a
    symptom of greater underlying problem with our immigration
    system, in your view?
        Mr. Melmed. Ranking Member Cornyn, absolutely. You know,
    these are, for the most part, immigrants who have already
    established to the Government that they are eligible for a
    green card. They have--their employers have already gone
    through a multi-year process to establish that there's no
    qualified and available U.S. workers, their employers have
    repeatedly sponsored them for work visas, showing an ongoing
    need, and their communities and their employers have invested a
    huge amount in them. The sole reason that they are aging out is
    because they are caught in that green card backlog, and it
    falls most heavily on Indian nationals who are limited by the
    per-country 7 percent limit.
        Senator Cornyn. Is the America's Children Act consistent
    with the approach Congress has used to address these problems
    in the past, in your view?
        Mr. Melmed. When Congress--you know, even recently as last
    week with EB-5, Congress historically has taken--well, there's
    been--excuse me, let me back up. There's been consensus to
    protect children when this has been brought to the attention of
    Congress, so I'll start with that. The solutions that Congress
    has pursued in the past have generally focused on either--I use
    the term ``freezing'' the child's age at a certain date in the
    green card process, so even though the child will sometimes be
    in their 20's or 30's, they're still for immigration law
    purposes considered a child. Other times, the relief utilizes a
    formula to ensure that they just back out the amount of time a
    case was pending with the Government, which can sometimes, of
    course, measure years.
        What they didn't do is necessarily create a different path
    to a green card. What I mean by that is that the children
    continued to ride along as derivatives to their parents' green
    card application, as opposed to going out onto their own
    application for a green card. Those are just different policy
    decisions. Both should be considered, but you're correct, in
    the past it was done as where they stayed as derivatives to
    their parents.
        Senator Cornyn. Assuming that we can come up with a
    bipartisan response to this particular problem that Ms.
    Rajakumar's situation exemplifies, it would require, of course,
    the Judiciary Committee as a whole to mark up a bill, and then
    Senator Schumer to bring it to the floor, as the Senate is
    currently constituted.
        I know Senator Tillis and I previously had requested, when
    it came to the larger group of DACA recipients who'd been
    caught up in litigation for the last 10 years, we've requested
    that the Chairman put a bill in front of the Judiciary
    Committee so we can vote on it, amend it as appropriate, and if
    it gets a majority vote, then make it available for floor
    action. Unfortunately, that has--that has not happened.
        Mr. Melmed, let me ask you about visa overstays. What role
    do visa overstays play in terms of illegal immigration in the
    United States?
        Mr. Melmed. I apologize, maybe at one point I could cite
    the numbers off the top of my head, but it's a significant
    percentage. Historically, it's been over 40 percent are visa
    overstays. I hazard a guess that that number is higher over the
    past few years as a percentage of the undocumented immigration.
    You know, there's been efforts throughout the years to improve
    entry-exit tracking and to have a better sense of who has
    overstayed their lawful status. I think that the tools that are
    available to the agencies today are different than they were
    back in 1996, which is really the last time Congress tried to
    tackle the question of overstays, and it's probably ripe now
    for review to look at that question.
        Senator Cornyn. Thank you.
        Chair Padilla. A note before recognizing Senator Durbin,
    the American Children's--America's Children Act bipartisan
    basis introduced includes a provision to freeze their age at
    21, would also give work authorization. The main benefit of the
    American Children's Act would be it creates an opportunity for
    the children who are raised and educated here to apply for a
    green card, and we should do what we can to help them. Just
    wanted to add that piece of information as we're talking about
    the proposed act. Senator Durbin.
        Chair Durbin. Thank you very much, Mr. Chairman. Ms.
    Rajakumar, I assume that is your mother sitting behind you?
        Ms. Rajakumar. Yes. It is.
        Chair Durbin. She's a remarkable person.
        Ms. Rajakumar. Definitely.
        Chair Durbin. That she would want to protect you and your
    family and go to these lengths says a great deal about you.
    Thank you so much. When will she receive a green card? Does she
    have a date?
        Ms. Rajakumar. Actually, shortly after I aged out of the
    application, my mother did receive her green card. Which is
    why, if I was forced to leave in 8 months, we would first and
    foremost be separated. While she may have the opportunity to
    come visit me from time to time, our lives would be in
    completely separate places.
        Chair Durbin. Of course. Mr. Melmed, our omnibus bill had
    more money for processing, which you raised. I think is a valid
    point. Wouldn't you agree that, unless we get to the heart of
    the issue in terms of the number of green cards, that we are
    going to continue to run into issues even if we are efficiently
    processing applications?
        Mr. Melmed. Absolutely, Senator Durbin. At this point in
    the process, for an Indian national, the agency processing
    times are checked with our firm before appearing. The overall
    green card process is still measured in years, in terms of
    agency processing. The issue that their family ran into is tied
    solely to the lack of green card numbers.
        Chair Durbin. It's not just a matter of appropriating the
    money. We've got to do something.
        Mr. Melmed. Yes, sir. It's up to Congress.
        Chair Durbin. That's an honest appraisal, thank you very
    much.
        Mr. Legomsky, thank you for acknowledging the obvious. We
    are dealing with real lives here. We can write laws trying to
    condition conduct, and we know in our own personal experience,
    newlyweds want to be in the same household. Families want to be
    close to one another. There's nothing wrong with those
    instincts. In fact, we reward them in many places in the law.
    But in immigration law, we challenge them way too often. Thanks
    for your service.
        Mr. Chairman, I'm glad that Senator Cornyn has returned. I
    have a bill called the RELIEF Act which goes after the green
    card issue and aging out children. You have a bill which I've
    cosponsored, America's Children Act. I want to accept the
    challenge that Senator Cornyn has made. I want Senator Tillis
    to be in on this conversation, because he and I have talked
    about this too.
        Let's put a bill before this Committee. Let's see what
    elements we can agree on and put it before this Committee.
    Let's test--Full Committee. Let's test whether or not we can
    expand it in certain directions. I have Members from your side
    of the aisle, Senator Tillis, coming up to me--not a great
    number, but some--saying, ``Am I going to get a chance to vote
    on DREAMers in this year?'' I haven't been able to say anything
    to them one way or the other. I want to say something to them.
    I want to give them that chance, but I think we have to test,
    in the Judiciary Committee, whether we can put together a
    bipartisan effort that can make it to the floor so we can
    implore McConnell and Schumer to give us our chance.
        There are just too many people like Ms. Rajakumar, whose
    lives are hanging in the balance. I don't want to be guilty of
    not trying. Mr. Chairman, I would want to join with you,
    because you've been an amazing leader on immigration in the
    short time that you've been with us. Let's do that. Let's
    decide what is acceptable and then test whether other things
    can be added to it and bring something to the floor. Let's not
    go another 32 years without a bill.
        Chair Padilla. Thank you, Senator Durbin. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chairman, Chair Durbin, I
    appreciate you saying that too. I think that's the best way for
    us to get the work done. A few years ago we had two bills on
    the floor that came very, very close. We had a historic number
    of Republicans voting for a path to citizenship for the DACA
    population. We almost got where we needed to be on addressing
    some of the border security issues. We can, I think, dust that
    off and come up with something productive. You know, I, for
    one, would like for this to be the Congress where we address
    the DACA population that we also address some of these guest
    worker programs and green card issues, which, to me, I lived
    firsthand.
        I got exposed to the H-1B process in my job as a partner at
    Pricewaterhouse. I've tried to tell anyone who thinks that we
    just need to find more computer scientists, more data analysts,
    more people with advanced degrees from the U.S. population,
    that they need to wake up and recognize that if we want our
    economy to continue to grow, if we want to continue to build on
    this great economy, that we've got to look to legal immigration
    as a critical part of fulfilling our workforce needs and really
    growing our innovation economy. Mr. Melmed, you were chief
    counsel at CIS, right?
        Mr. Melmed. Yes, sir.
        Senator Tillis. It seems to me that they are working on
    technology that existed largely before Myspace existed. If--I
    mean, just based on your business perspective of that
    operation, the lack of electronic systems, it just seems like
    there's not going to be enough oil in the gears of CIS to even
    just process the current backlog. For people like me, who would
    like to see more going through, that they're going to have to
    really modernize, and we are going to have to make the
    investments to allow them to do that. Do you agree?
        Mr. Melmed. Absolutely, Senator. I know my colleague,
    Professor Legomsky, also supported the Agency as they were
    wrestling with this after me. Being on the outside now, it's
    pretty phenomenal the way technology is transforming business.
    There are some positive signs out of the immigration agency
    this year. They've now been running the H-1B registration
    system as an online tool for a couple years, and that's gone
    well and successfully. They're starting to do more online
    payments, but that gives you an idea of how far they are behind
    the private sector in terms of case management.
        Senator Tillis. Wow, online payments.
        Mr. Melmed. It's still a paper-based process and very slow.
        Senator Tillis. You know, I also agree, Professor, that
    when you build--and I, you know, I've got lifelong friends
    that, back in the 1990s, brought on as H-1B visa workers, and I
    saw firsthand that connection to family members as they--these
    were some younger, freshly out of graduate school or with a
    PhD, building a life and building a family, getting caught up
    in all the things we're talking about here. That's why we do
    have to look at it. Because it's actually a drain and a
    distraction on the professionals. It actually undermines
    productivity and their quality of life, and I think that we do
    have to look at it through that lens.
        Mr. Melmed, are you familiar with the Preserving Employment
    Visas Act that we proposed?
        Mr. Melmed. I'm familiar with it, yes, Senator.
        Senator Tillis. Does it make sense conceptually that if we
    have all these unused visas, we have 7 million, 8 million plus
    job openings, that that's at least going to take a portion out
    of that pressure that we have today?
        Mr. Melmed. It does, Senator.
        Senator Tillis. I also think that I've heard in several
    hearings now that we're tracking a lot more entrepreneurs. A
    lot more new businesses have opened up. I think the COVID
    pandemic has made people either pursue dreams that they had on
    the shelf or just pursue other ways to make an income. They may
    never be going back to those jobs. Aren't we really undermining
    our ability to grow the economy and get back to a post-COVID
    kind of performance if we don't look at these issues?
        Mr. Melmed. We are, and I would note that immigrants are--I
    saw the statistic--25 percent more likely to start new
    businesses. Hundreds of thousands of high-skilled, professional
    workers can't leave their employer today. Otherwise, they
    jeopardize their green card application. Both shortening that
    time period and allowing them to get their green card and then
    go out and start on their own, or creating other opportunities,
    are all going to boost the economy.
        Senator Tillis. That, you know, I think, just back on
    DACA--why I was so glad to hear what Senator Durbin has
    proposed. We did a lot of research on people who would be
    qualified through the DACA program. If you were to take a
    cohort of, depending upon the estimates, of 1.8 million to 2.2
    million that would be eligible for the program, about 700,000
    who had enrolled in it. There are extraordinary people. They
    tend to have higher levels--they're either engaged in
    education, gainfully employed, serving in the military.
        I mean--for anyone who would have a philosophical problem
    with a path to citizenship for that population should probably
    do their homework because I actually think it's a group of
    people that we should figure out a way to solve that problem. I
    do also believe, Mr. Chairman, the only way we're going to
    solve it is to have a broader discussion about some of these
    other things that I believe that--we can ultimately put a
    package together and make significant progress, and I hope that
    progress is made in this Congress. Thank you, Mr. Chair.
        Chair Padilla. Thank you, Senator Tillis. I just want to
    compliment you on your effort, as well, on the Preserving
    Employment Visas Act, which would represent a great step
    forward in reducing the employment-based backlog. After today,
    I'd love to work with you to see if we can incorporate some of
    the relief to the family based backlog that we're talking about
    as well. Next is Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chair. Thanks
    for your great leadership here, and all the Senators. We have
    an all-star cast of people that have worked on this issue,
    including the Chair, Senator Tillis and Senator Durbin, Hirono,
    and Blumenthal.
        I have cared a lot about this for a long time. I've cared a
    lot about it because my State is the home of so many refugees
    and immigrants. We have the biggest population of Somalis, the
    biggest population of Liberians, second biggest of Hmong, and
    we also have workforce issues right now. It is both where my
    heart is, but also where my head is when it comes to our
    economy throughout our State.
        Our unemployment rate is very, very low in Minnesota, way
    below the national average. We have traditionally, because of
    bringing in immigrants, have been able to maintain one of the
    strongest economies in the country, which includes one of the
    highest per capitas of Fortune 500 companies.
        I'll start with you, Mr. Melmed. In your opening statement
    you discussed how the U.S. is falling behind. I think about
    this all the time. When we have job openings, we can't fill
    them with various skill levels of employees. I literally go
    into companies, and I think about it, because we talk about
    apprenticeships in workforce and then I always say, what's the
    most immediate thing we can do to shake this up? It's
    immigration reform. It's visas. It's all different things to
    create pathways to citizenship. What do you think--what
    policies do you think have the most detrimental effect right
    now on the ability of American companies to attract and retain
    top talent?
        Mr. Melmed. Senator, I would start with, one, maximizing
    the immigrants who are already here. What we hear from our
    clients and companies is that they have employees who are
    caught in the green card backlog, and that limits their
    progress. It limits the roles that they can take on. As I
    mentioned just a few minutes ago, it limits their abilities to
    go out and create new enterprises. The green card backlog and
    per-country issues, those are already here. I'd start with
    that.
        The other issue you hear about, I suspect, is from
    companies who look to hire out of U.S. universities. Such a
    high percentage of graduates, particularly in STEM fields, are
    in computer-related occupations. If a company today asked me,
    right now, they have a top candidate out of a U.S. university
    that they want to hire and sponsor for a work visa, the
    earliest that individual could start would be not this October,
    but the following October.
        Senator Klobuchar. Exactly. I've found it's even, for some
    of our smaller companies, it's harder to get in line to get
    these employees because they may not have quite the structure
    to pursue the whole thing. Very good, thank you.
        I'm going to turn to a bill I'm working on right now for
    our Afghan refugees. We're taking in a number of them in
    Minnesota, and this bill would provide a pathway to permanent
    legal status for Afghan refugees who were evacuated. I guess
    I'd ask you, Professor Legomsky, what should we be doing for
    these refugees and for others in order to--who are facing long
    waits and processing times, and why is it important to change
    that?
        Professor Legomsky. Thank you for that question. I think
    your solution is exactly the right one. We should be providing
    a path to lawful permanent resident status. I think that the
    situation of all refugees is compelling, but in the case of the
    Afghan refugees, there are more reasons still. The big one, and
    the obvious one, is that these are folks who, at great risk to
    their own lives, have assisted American civilians and American
    military personnel in Afghanistan. With all the trauma they
    have already been through, we don't need to superimpose the
    additional trauma of not knowing whether, at any moment, they
    will suddenly be picked up and returned home.
        For their children, the situation is probably even more
    dire, because they have less understanding of what is going on.
    For their older children, the awareness is even greater. A path
    to permanent resident status, I think, is the best thing we can
    do at this point.
        Senator Klobuchar. Mr. Melmed, one other thing I wanted to
    note--and thank you for that answer. Foreign doctors who are
    from other countries, but they are doing their medical--getting
    their medical degrees in the U.S. and do their residencies.
    Crazy situation where they have to go back to their home
    country. We'd love them to stay. This is the Conrad 30 bill. I
    now have 20 other co-sponsors, bipartisan. It's a bill that I
    have with Collins, Rosen, and Ernst to try and continue that
    program and make it even stronger. It's called the Conrad 30
    because it is named after Kent Conrad, because North Dakota had
    so many problems in retaining, as Senator Cornyn, another all-
    star cast member of people who want to get immigration reform
    done, knows, and so that would be very important.
        Do you also think that we need to make the case--I always--
    this is always one of my big things, trying to make the case. I
    think businesses know it, but sometimes I think our citizens
    need to understand that connection with businesses. Senator
    Cornyn, Coons, and Murkowski and I did a bill to require the
    Department of Labor to study the barriers that immigrants with
    advanced training face in finding employment when you look at
    our needs right now. Do you want to just comment briefly on
    that? Then I've got to let my other colleagues take a shot
    here.
        Mr. Melmed. I'd be remiss if I didn't comment on foreign
    physicians, as I'm a child of an immigrant foreign physician
    who settled in Dallas, Texas. I think, historically, the United
    States has been effective in identifying ways where there's
    win-win opportunities. Bringing foreign physicians to serve
    medically underserved areas is--has been done in the past, and
    it's an important tool at our disposal, and Congress should
    definitely continue to utilize that program.
        Senator Klobuchar. I'll ask you a question on the record,
    Ms. Rajakumar. Thank you. We'll get you one in writing so
    others can go. Thank you.
        [The information appears as a submission for the record.]
        Chair Padilla. Thank you, Senator Klobuchar. Senator
    Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chair. I join in thanking
    you and the Ranking Member for your work, and especially on
    this issue of enabling more of our communities and our
    businesses to make use of foreign talent. It is one of the
    really great strengths of our Nation that we are a nation of
    immigrants. From all over the world, including Ukraine and
    Afghanistan, possibly the two greatest recent sources.
        I've been working very, very energetically to enable more
    of our Afghan at-risk allies to leave that country. There has
    been only a trickle after the initial surge of those who were
    able to depart the country in the initial days of the
    withdrawal. I am frustrated by the slow pace at this point and
    continued lack of enabling of those individuals to leave the
    country. They are a source of potential talent to us because
    they are the translators, interpreters, guides, workers.
        I'm wondering, Professor Legomsky, whether there's any
    precedent in recent history for enabling that kind of
    population to go from temporary protected or parole status, as
    they are now, with the sword of Damocles over their heads very
    shortly, actually, having to leave the country, to deal with
    that kind of major part of the population in those numbers.
        Professor Legomsky. I can't think of a specific example in
    which Congress has adjusted a large group of people from TPS
    status directly to either refugee or lawful permanent resident
    status. There's certainly, however, been many executive actions
    in which former Presidents have allowed particular groups of
    those who face compelling humanitarian needs to be paroled into
    the United States.
        One thing I will say about TPS is that, sometimes the
    objection you hear to making their status permanent, is that
    TPS was meant to be only a temporary program. I take that
    objection seriously, but my own view is that, whatever the
    original purpose of the admission of a particular group,
    circumstances change. Sometimes for humanitarian or even for
    interest--reasons of national self-interest, it makes sense to
    adjust that population. I'd be hard pressed to think of a group
    more deserving of that kind of treatment than the Afghan
    refugees who have been so helpful to us.
        Senator Blumenthal. As you say, they've put their lives on
    the line for us, our troops and our diplomats, in Afghanistan.
    They did it because they love this country, because they value
    freedom and democracy, and they were willing to put themselves
    and their families at risk to serve us. We have a moral
    obligation here that transcends any self-interest, I think.
        You mention executive actions by Presidents--former
    Presidents. Can you give me a couple?
        Professor Legomsky. I was afraid you were going to ask me
    that because my memory is starting to slip.
        Senator Blumenthal. You can get back to me.
        Professor Legomsky. Okay, I will. Thank you.
        Senator Blumenthal. Okay. In my home State of Connecticut,
    my office has seen the kind of backlog that's been described by
    many of your colleagues--you're familiar with it--in
    immigration processing times for pending applications. My own
    case workers have seen I-765 employment authorization
    applications waiting for months, literally months on end, and
    that's the reason that I advocated for an additional $200
    million in funding for USCIS as part of an effort to address
    the backlogs. You may have answered this in part already, but
    could you give me a specific to-do list with that money for
    USCIS?
        Professor Legomsky. Yes. I'm a little bit limited in what I
    can say because it has been 8 years since I've served as chief
    counsel, and I have to assume that at least some procedures
    have changed. I will say that, in all honesty, during my time
    there, it's not as if I noticed lots of obvious inefficiencies
    in the way applications were being processed. My own view is
    that it's a positive thing that Congress, I believe for the
    first time for this fiscal year, has supplemented USCIS
    revenues with appropriations of its own. Normally, it's
    reliant--USCIS is reliant solely on the fees provided by the
    applicants themselves.
        In addition to that, nobody can be against constantly being
    on the lookout for ways to enhance efficiency. To put this
    question in perspective, I think that both increasing
    efficiency and supplementing funds--both of which I count as
    positive steps--alone would produce just a small drop in the
    bucket. The big problem, and Senator Durbin has alluded to
    this, is that Congress has to act by dramatically raising the
    caps for people. That's where the big gains are likely to be
    made. Until that happens, I think efficiency gains will get us
    only marginal improvement.
        Senator Blumenthal. Would you agree, Mr. Melmed?
        Mr. Melmed. I do agree with Professor Legomsky. I think
    until there are some efficiencies through digitization that
    Senator Tillis mentioned, and those would be measured in
    percentages, not major levers to reduce, I think the issues
    that we've talked about in terms of green card backlog, I
    just--if I could highlight the employment authorization
    document delay that your constituent services teams are
    wrestling with day in and day out. That's a backlog that's just
    going to continue to increase. As I mentioned, you can't hire
    your way out of that. You've got to somehow reduce the number
    of pending applications.
        This administration has, to their credit, lengthened the
    validity of those documents, and that's helped a little bit but
    obviously not enough. Some of those bigger levers need to be
    pulled to bring that processing time down.
        Senator Blumenthal. It doesn't speed it. It just lets more
    people wait in line for longer periods.
        Professor Legomsky. Correct.
        Senator Blumenthal. Thank you. Thank you--thank you all for
    being here today.
        Chair Padilla. Thank you, Senator Blumenthal. Senator
    Hirono.
        Senator Hirono. Thank you, Mr. Chairman. I'm glad that
    Senator Durbin acknowledged the presence of Ms. Rajakumar's
    mother. I want to extend to you a very special aloha. I
    represent the State of Hawaii, and I too had a very courageous
    mother who brought three children to this country to create a
    better life for us. I am the only immigrant serving in the U.S.
    Senate right now. A special aloha to you.
        Now, there is consensus among Democrats and Republicans
    that we have a broken immigration system. When you look at the
    over 11 million undocumented people who are here, we have over
    800,000 DREAMers who are actually signed up, with many, many
    more who could qualify. You have the undocumented DREAMers,
    maybe 250,000 of them. You have all the people stuck waiting
    for their visas and practically in the--well, hundreds of
    thousands.
        There is agreement that our system is broken. If you start
    with the proposition that we're going to need to do some sort
    of solution, come up with some sort of solution to the border
    situation and that is how you were going to start immigration
    reform, then we're not going to get very far. That's one of the
    major reasons that we have not gotten very far since 2013, when
    we actually managed to pass a bipartisan immigration bill that
    I thought was very comprehensive. It wasn't all that it could
    have been, of course, but immigration is screwed up in so many
    different areas that you hardly know where to begin.
        As I'm sitting here listening to the testimony, Dr.
    Legomsky and Mr. Melmed, you both have been working on
    immigration issues for a long time. Ms. Rajakumar has lived it.
    If we were to put the two of you in a room and told you guys to
    come up with areas of agreement for what we can do with our
    broken immigration system, do you think you could do that? Do
    you think you could come up with something that we could work
    on?
        Mr. Melmed. I feel like that might be the toughest question
    that you've sent our way.
        Senator Hirono. Because if you can't, how can you expect us
    to do it?
        Mr. Melmed. Honestly, I think the Professor and I would
    disagree on a number of things. I think we would both be well
    intentioned, and I think we would both be committed to roll up
    our shirt sleeves and get something done. I mean, it's an area
    where I think we would agree these are hard issues to wrestle
    with, and everyone on either side is going to have to make
    compromises.
        Professor Legomsky. I very much agree. I have found Mr.
    Melmed to be an extremely reasonable person, especially given
    his comment that I would be an easy person to deal with. It's
    true that there are many, many areas in which I think we would
    easily find agreement, some in which we might find agreement
    with a little bit of fine tuning, other areas in which I'm sure
    we would disagree. The real question is whether we could come
    up with a plan that we both agree on and that would pass both
    houses of Congress. I think that would be a tougher issue,
    because I know there's a wider diversity of opinion within the
    Senate and as well within the House.
        Senator Hirono. If you were to leave Congress out of it and
    we asked you to come up with something that's reasonable that
    addresses the huge backlog that we have and, you know, all of
    the myriad problems that you have testified to, I would think
    that you would be able to come up with some reasonable areas
    that would enable us to go forward.
        Every time the word immigration comes up, you know, there
    are Members--mainly, I would say, of the Republican party
    because I feel like I can say that since my friend there,
    Senator Cornyn, has castigated the Democrats. Really, there are
    a lot of Republicans who run for the hills. At the same time, I
    know that our Ranking Member really wants to get something done
    in this area, and I--after hearing this and talking with my
    colleague to my left, the Chairman of the Committee, I feel as
    though maybe we can get something done.
        In the area of who should have some sort of preference to
    come into our country, Mr. Melmed, you said that we should
    enable people with certain skill sets, probably in the math and
    science areas. We certainly need workers in those areas. I
    would just like to mention to you and this body, when we worked
    on the comprehensive immigration reform, there was a
    preference, I would say, for people with those kinds of
    backgrounds and experiences to have preference to come into our
    country with visas.
        We have a huge need for domestic workers, for healthcare
    workers, etc. These are not people with science and technology
    backgrounds, and yet with the kind of preference that was in
    the original comprehensive immigration bill, a lot of women
    would have been left out of our immigration system. They would
    have been left out of getting visas on their own. They would've
    had to marry, usually, the guy who had the STEM backgrounds and
    experiences. I'd just like to note that, because we have huge
    needs for all kinds of workers in this country. I would not
    want us to get--to just focus on the people with the so-called
    advanced degrees and those kind of experiences.
        Mr. Chairman, thank you very much for holding this hearing.
    My hope is that we can come up with something. In fact, I
    welcome the two of you to suggest something to us based on the
    testimony that you provided today. Thank you.
        Chair Padilla. Thank you, Senator Hirono. We had, a few
    minutes ago, Senator Booker online to participate, are you
    still there, Senator Booker. If you are, you're next for asking
    questions, and if not, then we will proceed with the second
    round of questions for Members who are with us. I want to come
    back to Ms. Rajakumar who, again, embodies the issue, one of
    the many challenges of our immigration system before us.
        I asked you previously what it would mean if the America's
    Children Act were to pass, but I want to go retrospective a
    little bit. How would your life have been different over the
    last few years if you have--had been able to get a green card
    already? As you answer that, you can share with us also, would
    you describe what would happen in your life and your family if
    you had to leave the United States?
        Ms. Rajakumar. Thank you for your question. I think that
    permanent residency would have benefited me in many ways at
    several points in my life, but specifically over the past few
    years, especially once I turned 18. It would have given me the
    independence that I so badly desired. For example, I really
    wanted to be able to work when I was in college.
        The out-of-state tuition--as I mentioned in my testimony,
    children like me don't qualify for any university or Federal
    financial aid, so the $70,000 of out-of-state tuition that my
    mom took upon herself was an exorbitant burden on my family.
    She jeopardized our only home, and my inability to support
    myself due to my inability to work was just an extra stress on
    the family, not even being able to take care of my personal
    expenses.
        Then, in addition, in 2019, if I had my permanent
    residency, I would have loved to have been able to take off a
    semester or even a year off school after my brother's passing,
    and really mourn and process and heal and be there for my
    mother, and had the confidence that I could have picked up my
    education once again when I felt ready, without any impact on
    my future.
        If I had to leave, first and foremost, after being
    separated from my mother, it means returning to a country that
    I've only ever been to twice before, a place where I have no
    place to live, no means of transportation let alone a license,
    a career, or support system, because apart from my mother, even
    my most immediate extended family reside in the U.S., so it
    would quite literally mean starting over completely from
    scratch.
        My only other option of staying here would be to apply for
    an H-1B application, which would only further my work visa
    sponsorship and maybe me give me a couple more years, but at
    the end of which I will once again face self-deportation. The
    problem, again, with these applications type is they're fully
    luck based. They're pure lottery. It does not take into the
    account that I have--the years that I have spent growing up
    here, and even if I were to be lucky enough to get an H-1B
    application and then be sponsored for my green card through my
    employer, as my mom did over a decade ago, I would once again
    fall toward the back of the line that she was in and the line
    that I aged out of. Neither option is very viable, in my
    opinion.
        Chair Padilla. Very real circumstances. I want to focus
    back on the employment-based immigration system for another
    moment. The number discussed as to numerical limit for
    employment-based green cards is 140,000. We've referenced that
    figure earlier in the hearing. That number does not actually
    represent the number of people who petitioned for an
    employment-based green card. Spouses and children of immigrants
    who accompany an employment-based immigrant actually count
    against the 140,000 cap. I mentioned that in my opening
    statement. Therefore, less than half of the 140,000 employment
    green cards actually go to immigrants selected for employment
    reasons.
        A question for both Mr. Legomsky and Mr. Melmed, can you
    discuss how exempting spouses and children from the cap would
    improve our immigration system?
        Professor Legomsky. It would have the same kind of
    beneficial effect, with slightly different numbers, as some of
    the other bases for increasing the total cap, such as
    increasing the base number, recapturing unused visas,
    eliminating the deduction for immediate relatives, and so on.
        I see a proposal to exempt the dependents from the cap as
    being in that same vein, and I think they would all have the
    same benefits. They would greatly shorten the waiting times for
    people who, after all, are going to be admitted at some point
    anyway. It's just that this would allow them to be admitted
    sooner rather than later, thereby helping the employers who
    need their essential labor right now, rather than forcing them
    to wait in the future.
        Chair Padilla. Mr. Melmed.
        Mr. Melmed. I agree with Professor Legomsky. I don't have
    anything else to add other than--you can see the snowball
    effect, that when you have a 10-year backlog for a green card,
    people will marry, they will have children. Those folks are
    then being added to the line, so a little bit of an explanation
    of why that backlog is increasing even while doing nothing,
    just by nature of families growing.
        Chair Padilla. I think it speaks to both the backlog and
    the effort to address the backlog at the same time, the purpose
    for which this was intended to impact employment and the
    economy. When a majority of the numbers are not the sponsored
    entity but spouse and children of, that's limiting the
    employment and economic contribution side, so it makes sense to
    me. Senator Cornyn.
        Senator Cornyn. Mr. Melmed, I mentioned Senator Tillis's
    bill, Preserving Employment Visas Act, which would recapture
    92,000 employment-based green cards that went unused. I suppose
    the answer to this question is obvious, but if we recaptured
    92,000 employment-based visas, that would reduce the backlog
    accordingly, correct?
        Mr. Melmed. It certainly would, Senator.
        Senator Cornyn. Talk about the impact that that would have,
    what beneficial impact would it have on children who are in Ms.
    Rajakumar's situation, if we're able to recapture those green
    cards. Would it help those who might otherwise age out of the
    system?
        Mr. Melmed. Yes, Senator. You would shorten out the wait
    time for a green card, and it wouldn't, of course, protect
    everyone from aging out. It would certainly reduce the
    likelihood and chances of children turning 21 before the
    parents get a green card.
        Senator Cornyn. Okay. To Senator Durbin's point, lest
    people think that we all disagree on--about everything, I
    mention the bill that he and I partnered on, Healthcare
    Workforce Resilience Act. This would capture 40,000 employment-
    based immigrant visas for doctors and nurses. If there's one
    thing I hear from my hospitals in Texas, it's the shortage of
    nurses because of the burnout factor associated with COVID-19
    and the like. Now, hospitals are having to pay incredible
    multiples of what they ordinarily would pay to nurses to
    contract with companies that basically will provide the nurses
    at a given price.
        Mr. Melmed, you stated that more than 2.6 million migrants
    are currently employed as healthcare workers, and as I
    mentioned, about 30 percent of the physicians in Dallas and
    Fort Worth are foreign born. What impact would this have, if
    we're able to recapture those 40,000 employment-based visas for
    doctors and nurses? What impact would that have on the public's
    access to healthcare?
        Mr. Melmed. Thank you for highlighting that fact. It is an
    industry that's, as they say, overrepresented with immigrants,
    and they're critical to that industry. Addressing the green
    card backlog would do two things for them. Some of them are
    already here and, as we've talked about at length, are caught
    in that backlog and therefore unable to change roles, progress
    in their roles, start new enterprises. There's also others in
    the healthcare industry who come straight to the United States
    on a green card. By making additional extra visa numbers
    available, you would actually increase the number of workers,
    immediately. That would have a near-term impact.
        Senator Cornyn. Thank you. Thank you, Mr. Chairman.
        Chair Padilla. Thank you. Just as a follow-on to that, Mr.
    Melmed, I want to recognize from your written testimony
    submitted that a recent report by the Niskanen Center indicates
    that, if the Federal Government recaptured 231,000 unused
    employment-based green cards, the policy would add $216 billion
    to GDP over 10 years. If it recaptures 940,000 unused
    employment-based and family preference green cards, the policy
    would add $815 billion to GDP over 10 years. Further makes the
    point. Senator Durbin.
        Chair Durbin. Let me just add a couple things very quickly,
    and I thank the panel for their patience. The Tillis bill,
    Senator Cornyn cleared the hotline on the Democratic side, but
    there were two on your side who objected. They're both Members
    of this Committee. At least one of them has said he doesn't
    want one more immigrant in this country. That's the problem.
    We're going to--if we're going to do anything, we'll have to do
    it the old-fashioned way. We're going to need 60 votes. We're
    going to have to find something to come out of this Committee
    in a bipartisan fashion that has a chance of 60 votes on the
    floor. That may limit our scope, but I hope it doesn't. I'm
    willing to undertake that. I think what we've heard today ought
    to be a compelling reason to start that conversation and see if
    we can----
        Senator Cornyn. I would just say to my friend the Chairman,
    obviously we pass things around here by unanimous consent, but
    when we can't get 100 Senators to agree, then we vote them out
    of Committee and we get them on the floor and get 60 votes for
    cloture and we pass them. It may be necessary, because this--
    immigration can be an emotional issue. Frankly, some of the
    positions taken on either side of the aisle, I don't find make
    a lot of sense to me.
        I do think there's a core, certainly, of 60-plus Senators
    who are willing to take up commonsense measures like this and
    to pass them, if we can get a commitment to mark them up in
    Committee and then on the floor. I just want to say publicly
    how much I appreciate your willingness to take up and mark up
    an immigration bill, particularly relating to a situation like
    Ms. Rajakumar finds herself in, such as proposed by the
    Chairman of the Subcommittee. I think this is something we
    ought to be able to find the solution to, and maybe some of
    these other areas as well.
        Chair Durbin. Mr. Chairman, I want to acknowledge to you
    and to salute the panel. You may have seen history in the
    making, who knows. I always say the education of a Senator is a
    daunting task, and a public declaration by a Senator that
    they're actually going to try to legislate is almost historic
    around here. Who knows, this may end well. I want to thank all
    three of you, particularly Ms. Rajakumar. Your story is so
    compelling. It really calls on all of us to get up and do
    something, so I hope we can. Thank you for being here today,
    all of you.
        Chair Padilla. Thank you, Senator Durbin. Before moving to
    a close this hearing, I'm going to take the Chair's privilege
    and ask just one more question that I think is important to
    raise today. It's going to be for Professor Legomsky. In 1996,
    Congress passed the Illegal Immigration Reform and Immigrant
    Responsibility Act. With that measure, Congress attempted to
    create disincentives to come and remain unlawfully in the
    United States. An individual who remains unlawfully present in
    the United States for more than 180 days but less than a year
    is barred from admission for 3 years. Those that are unlawfully
    present for more than a year are barred for 10 years. The most
    extreme case, if one re-enters after having been removed, after
    being unlawfully present for more than a year, they're
    permanently barred. Exceptions to these bars remain very
    limited.
        Professor, in your testimony, you advocated the repeal of
    the 3-year, 10-year, and permanent bars. You said they create a
    procedural Catch-22, whereby someone who otherwise qualifies
    for legal permanent resident status has no place to apply for
    it. Can you elaborate on that for a minute?
        Professor Legomsky. Yes, and I apologize in advance that
    this explanation will be a little bit on the nerdy side, but I
    don't think I can avoid it. When a person has been unlawfully--
    if a person is currently unlawfully present, then that, of
    course, alone is already a ground for removal. As you have
    indicated, these 3, 10 bars apply to people who have been
    unlawfully present at some point in the past. My own view is
    that they are inherently disproportionate to the nature of the
    offense, even in general, given the desperation that drives
    people to enter or to remain in the U.S. without status. The
    particular procedural catch-22 that you referenced is as
    follows.
        Suppose you are a person who meets all of the substantive
    eligibility requirements that Congress has set for becoming an
    LPR. That is, you fall within one of the family categories, you
    do not fall within any of the inadmissibility grounds, and
    you've waited your turn in line, and now your priority date has
    become current. You're at the front of the line ready to be
    admitted. There is a point in your life at which you have been
    unlawfully present.
        You can't simply go to the U.S. consulate and get a visa,
    which is the traditional route for becoming an LPR, because the
    moment you step outside the country, you will now have
    departed, and the unlawful presence plus the departure together
    make you inadmissible for, in almost all cases, 10 years. The
    visa will be denied on that ground alone. That would be okay,
    if you could instead simply do the paperwork here in the United
    States through the process known as adjustment of status. With
    rare exceptions, you can't do that--I shouldn't say rare. With
    an exception of only a minority, you can't do that either.
        For one thing, you are statutorily ineligible for
    adjustment if you have not been admitted or paroled. If you
    entered the country without inspection, that alone would rule
    you out. Even if you entered the country legally on a
    nonimmigrant visa but then overstayed and became unlawfully
    present in that way, okay, you can overcome the admitted or
    paroled bar, but then you run into another obstacle. Because to
    be eligible for adjustment, you also have to show that you have
    been continuously, lawfully present--pardon me--you have
    maintained continuous, lawful status in the United States since
    your entry, which you would not have done had you overstayed.
        To be fair, I should acknowledge an important exception.
    That is that immediate relatives are exempt from the
    requirement of lawful continuous status. Unless you are an
    immediate relative who became undocumented only by reason of
    having overstayed, as opposed to entering without inspection,
    then you're not within any of the exceptions, and despite
    having met all of the substantive eligibility requirements for
    admission, you can't apply for it outside the country and you
    can't apply for it inside the country. That's why I describe it
    as a procedural catch-22.
        Chair Padilla. Thank you very much. Enlightening for those
    who are unfamiliar with that dynamic, and not very for the
    many, many who have personally or know someone who is caught in
    that catch-22.
        Before we conclude, I want to move to enter a number of
    statements into the record, including statements from Asian
    Americans Advancing Justice, Americans For Prosperity, and the
    LIBRE Initiative, American Families United, the Center for
    Migration Studies of New York, CHIRLA, FWD.us, Improve the
    Dream, NACS, the National Immigration Law Center, and the
    National Venture Capital Association. Without objection, those
    statements will be included, and the record for the hearing
    will close 1 week from today.
        As this hearing concludes, I do want to thank my fellow
    Subcommittee Members and especially our witnesses for joining
    us. I'm glad to see that we might've taken some steps forward
    and made progress today. That's why we held this hearing, to
    try to find pathways for progress and to improve this outdated
    and overly complex immigration system. I look forward to
    working with my colleagues on both sides of the aisle to move
    the America's Children Act and other important legislation
    forward in Judiciary Committee.
        To just sort of capture the spirit of the last couple of
    hours, we've heard overwhelming evidence that our immigration
    system is broken, outdated. Visa limits are hurting our economy
    and endangering workers. Enormous backlogs are separating
    families, sometimes for years, sometimes for decades. Arbitrary
    cutoffs are forcing children who grew up in this country to
    leave their families and their only home.
        We have a responsibility to fix all of this. Just think
    about all the lives and stories reflected in the chart here
    behind me. If you're a U.S. citizen with a sister in Mexico,
    you're supposed to wait 224 years before she receives her visa.
    That's the impact of the current backlogs. If your married
    child is in the Philippines, he and his partner face a wait
    time of 155 years. If you're an employer trying to hire a
    Chinese worker with 2 years of training, your employee should
    expect to wait 44 years before receiving a green card. Indian
    workers with a bachelor's degree are expected to wait a
    staggering 90 years.
        These aren't wait times. They are de facto bans. It's past
    time to make our immigration laws reflect reality, as well as
    the current needs of our Nation. When we do so, that reform
    will benefit everyone by reuniting immigrant families who can
    help communities thrive. By inviting immigrants to join our
    workforce, we can grow our economy for all. By welcoming
    immigrants from countries with lower levels of immigration
    through our diversity visa program, we contribute to the rich,
    cultural fabric of the United States. By recapturing unused
    visas, we can reduce employment and family based immigration
    backlogs and add billions of dollars to our GDP, reunite
    families and strengthen our economy at the same time. By making
    sure any bill coming out of the America COMPETES/USICA
    Conference includes immigration provisions, we can help build
    our domestic STEM workforce and encourage startup companies to
    establish roots here.
        These reforms are especially important at a moment when our
    workforce is aging and demand for visas is higher than ever.
    America has a proud history of welcoming immigrants, and now is
    the moment to recommit ourselves to that task. As Mr. Melmed
    said in his testimony, by doing nothing, the United States is
    going backward.
        Although it's not a topic of this hearing, I want to
    conclude by taking a step back and acknowledging a few recent
    events. Right now, the people of Ukraine are enduring a brutal
    and unprovoked assault by Russian forces. More than 2 1/2
    million people have already been forced to flee their homes,
    and that number seems to be growing by the day, creating the
    largest European refugee crisis since World War II. America
    must be a leader by example and protect Ukrainians who have
    been driven away from their homes, just as we should be doing
    for the Afghan evacuees who made it to our soil, as well as
    Afghan refugees abroad.
        At the same time, I urge the Biden administration and my
    colleagues to remember the refugees who are waiting at our
    border, kept out by the cruel and unnecessary Title 42 policy.
    The administration made the correct decision to end Title 42
    for unaccompanied children, recognizing that there is no public
    health need to deny the rights of lawful asylum seekers. It's
    past time to end this draconian policy for all the individuals
    and families who come here to escape terrible persecution.
        Colleagues, again, I ask that we recommit ourselves to
    reflecting our values as a nation of immigrants. Thank you all
    for your participation again here today, and with that, today's
    hearing is adjourned.
        [Whereupon, at 3:55 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

                                A P P E N D I X

    Miscellaneous submissions:

     American Families United.........................................    64

     Americans for Prosperity & The LIBRE Initiative..................    86

     Asian Americans Advancing Justice (AAJC), statement..............    87

     Canaba, Ramon, Jr., statement....................................    84

     Coalition for Humane Immigrant Rights (CHIRLA)...................   112

     Delich, Mark, FWD.us statement, March 15, 2022...................   116

     National Association of Convenience Stores (NACS)................   132

     National Association of Manufacturers............................   135

     National Immigration Forum.......................................   138

     National Immigration Law Center..................................   143

     Nation's Venture Capital Investors (NVCA)........................   148

     Poll from Survey USA.............................................    85

     Removing Barriers to Legal Migration to Strengthen our
        Communities and Economy.......................................   104

     UnidosUS.........................................................   151

     Improve The Dream, Collection of Stories from Members

      https://www.govinfo.gov/content/pkg/CHRG-117shrg56622/pdf/CHRG-
        117shrg
        56622-add1.pdf

       [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                     [all]