Relief from deportation and green cards for those waiting in backlogs could be part of a reconciliation bill if the Senate parliamentarian agrees. The current state of play has confused analysts and lawmakers alike, not to mention those directly affected by what Congress might do on immigration.
Background: In September 2021, Democrats asked the Senate parliamentarian to review a package of reforms that would have granted lawful permanent residence to millions of individuals currently without legal status. The parliamentarian rejected those reforms as outside the scope of a reconciliation bill.
“Senate Parliamentarian Elizabeth MacDonough, a former immigration lawyer, shut down the possibility of granting 8 million people the right to apply for legal permanent residency, determining in a Sunday opinion that it did not meet the Senate’s rules for the budget reconciliation package because it was a policy change that went well beyond the budget,” reported The Hill. “The decision is critical because under Senate rules the filibuster cannot be used to block a reconciliation package, meaning policy changes included in the massive package can become law if Democrats can secure 50 votes from their own caucus in the Senate. While MacDonough’s ruling nixes the possibility of an easy legalization process for specific subgroups of immigrants, advocates are confident their backup pitches will sway MacDonough.”
The “backup pitch” to the parliamentarian was to change the registry date, an action that would have benefited people both in and out of legal status, such as Dreamers (individuals who came to America without legal status before age 18) and people in TPS (Temporary Protected Status). A report by FWD.us estimated that moving the registry date from January 1, 1972, to January 1, 2011, would permit approximately 6.7 million people to be eligible for permanent residence.
However, the registry option also did not work. On September 29, 2021, the Senate parliamentarian rejected Democrats including an update of the immigration registry date in a reconciliation bill. “The number of beneficiaries and score of this amendment…are largely the same as those of the earlier proposal which does not dramatically shift the balance of policy vs. score,” stated the parliamentarian, according to the Wall Street Journal. The parliamentarian added: “The change in status to [lawful permanent resident] remains a life-long change in circumstances, the value of which vastly outweighs its budgetary impact.” (Emphasis added.)
What’s Next?: Democrats are looking for a “Plan C” to present formally or informally to the Senate parliamentarian. One option is to provide parole to individuals who arrived in the United States before January 1, 2011, and who don’t have a current permanent legal status, sources confirm. Parole would protect millions of people from deportation and provide work authorization. That would keep individuals from being separated from their families and allow people to remain in the U.S. and work legally.
Since parole does not grant the “life-long change in circumstances, the value of which vastly outweighs its budgetary impact” to which the Senate parliamentarian objected, it is more likely to gain the parliamentarian’s approval to be included in a reconciliation bill.
The “upside” that the measure could be included in reconciliation is balanced by a downside. That downside is that without permanent residence, these individuals could one day be subject to deportation if the parole status expires, or a future Congress or president ends the status via legislation or potentially other means. Another downside is it would not cover individuals, including some portion of Dreamers and people in TPS status, who arrived in the United States after January 1, 2011.
Still, many Republicans have favored allowing individuals to be protected from deportation and to get in the back of the line to immigrate legally. Individuals granted parole would become eligible to apply for permanent residence but only if they fit into an existing family or employment immigration category. That does not mean Republicans would not criticize the parole option.
Future legislation might be needed, given it is unclear how many individuals paroled would gain permanent residence using existing categories. One immigration attorney speculated it is unclear how the parliamentarian would view the parole option given that some portion of those paroled could later gain permanent residence. On the other hand, granting parole is far less generous than the measures the parliamentarian has previously rejected for, in her view, being too expansive.
If the Senate parliamentarian does not approve providing parole or another option, Democrats could vote to ignore the parliamentarian. “A group of legal scholars from around the country called on Vice President Harris and Senate Democratic leadership to include immigration protections in the reconciliation package, despite the Senate parliamentarian’s ruling against the move,” reported The Hill. “The 92 scholars called on Harris, Senate Majority Leader Charles Schumer (D-N.Y.) and Senate President Pro Tempore Patrick Leahy (D-Vt.) not to ‘overrule’ Parliamentarian Elizabeth MacDonough, whose rulings are non-binding, but for the presiding officer of the Senate to issue a ruling contrary to her advice.”
“The scholars wrote that the parliamentarian cannot make a final authoritative determination on that point—that only the presiding officer or the full Senate on appeal can do so,” according to The Hill. “To successfully appeal the presiding officer’s ruling, Republicans would need to garner 60 votes. Senate Democrats would still need 51 votes to pass the final bill, meaning Harris would have to be present and presiding over the Senate to cast the tie-breaking vote.” In other words, it would require all 48 Democrats in the Senate and the two independents who caucus with the Democrats to vote for the bill after including the immigration provisions.
In September 2021, Senate Judiciary Committee Chair Richard Durbin (D-IL) “told reporters the Senate won’t overturn the ruling of the parliamentarian on immigration, saying simply the votes aren’t there to accomplish that,” according to CNN. “I don’t believe that’s realistic,” Durbin said. “I think the votes needed on the floor are not there.”
What Happens to the Immigration Provisions in the House Bill: On September 13, 2021, the House Judiciary Committee passed immigration measures to be included in a reconciliation bill (the budget bill) by a party line vote.
The first section (60001) was called “Lawful Permanent Residence for Certain Entrants” and included provisions to provide permanent residence for potentially 8 million people who lacked legal status. Based on the Senate parliamentarian’s ruling, this section would not be included in the House or Senate-passed reconciliation bill.
However, the next two sections dealing with legal immigration have not yet been presented to the Senate parliamentarian, sources confirm, and could be included in what the House and Senate ultimately pass. Section 60002 would recapture a minimum of 226,000 immigrant visas in family and employment-based categories that went unused between FY 1992 and FY 2021. Green cards are protected for Diversity visa winners who could not come to the United States due to the Trump administration’s “Muslim ban” or Covid-related policies and delays.
As discussed here, under section 60003, an employment-based immigrant applicant with a “priority date that is more than 2 years before” can adjust to permanent residence without numerical limits by paying a “supplemental fee of $5,000.” The fee is $50,000 for the EB-5 category (immigrant investors). The provisions expire in 2031.
A family-based immigrant sponsored by a U.S. citizen with a “priority date that is more than 2 years before” can adjust to permanent residence without numerical limits by paying a “supplemental fee of $2,500.” In FY 2019, up to 94% of employment-based immigrants (high-skilled) were adjustment of status cases in FY 2019 and, therefore, could have benefited from the provision, compared to 3% of individuals in the EB-5 category, and between 8% to 15% of family-based immigrants (depending on the category). Attorney Ira Kurzban recommends a V visa to allow families to enter the U.S. and use the adjustment of status provision in the bill.
If an applicant’s priority date is not within two years, individuals inside the country can still file for adjustment of status for a $1,500 fee (and a $250 fee for children) under the Judiciary Committee provisions. That would provide individuals with immigration benefits, such as an employment authorization document, even while waiting for permanent residence.
Under the House Judiciary Committee bill, many employment-based immigrants would have been able to adjust to permanent residence status as “essential workers.” However, since the “essential workers” provision is in the first section—the one now likely null and void due to the Senate parliamentarian’s ruling—it is unlikely to be part of the House-passed reconciliation bill.
Still, other provisions in the Judiciary Committee-passed bill would benefit employers and employment-based immigrants. “The provisions in the House bill would allow employees in the backlog to file for adjustment of status without regard to whether a priority date is available,” said immigration attorney Cyrus Mehta in an interview. “From an employer’s perspective, they may not need to rely on the uncertainty of the H-1B visa lottery as much as they do now. An F-1 on Optional Practical Training (OPT) can be sponsored for permanent residence through labor certification during the F-1 OPT period, although one eligible for F-1 STEM OPT will have more time for the labor certification to get processed and approved.”
“Once the labor certification is approved, the employee will be eligible to file an I-485 adjustment of status application concurrently with the I-140 petition and obtain employment authorization during its pendency,” notes Mehta. That would allow an employee to remain in the United States and be eligible for continued employment with the employer.
“Employers may help an employee with an approved petition by paying the $5,000 on their behalf so that he or she can get permanent residence more quickly,” said Mehta. “An employer that facilitates permanent residence will be more attractive to noncitizen employees. An individual can choose to pay the $5,000, both under current law and the bill, according to Mehta.
The need for immigration reform is evident, including in the employment-based area: In the United States, the annual limit of 140,000 employment-based green cards is considered too low and includes a 7% per-country limit that forces longer waits on immigrants from India, China and the Philippines. It will take 195 years to clear the backlog of Indians in the employment-based second preference, according to the Congressional Research Service. And the U.S. backlog in employment-based categories will exceed 2 million people by 2030 without reform.
In The Divine Comedy, when Dante enters Hell, he sees the phrase: “Abandon hope all ye who enter here.” For immigration supporters and those affected by potential legislative changes, things are not that bleak yet.