Featured Issue: Immigration Reforms through Budget Reconciliation

Last week, the House of Representatives passed the Build Back Better Act with key immigration provisions. AILA's Greg Chen explains what is included in the bill the House passed and what are the next steps.

On September 29, the Senate parliamentarian issued her second negative opinion on the legalization provisions presented to her by Democrats, this time regarding updating the registry date. The parliamentarian ruled against the inclusion of the registry provisions on the grounds that green cards, in any context, produce an incalculable impact in the areas of employment, deportation protection, family sponsorship, voting, and more that would outweigh their budgetary cost or revenues in violation of the Byrd rule. After the ruling, Senator Durbin, the majority whip, noted that the package “still involved legal permanent residency; we knew we still had a real challenge.” The ruling prevents the current legalization package from being included in the budget reconciliation bill unless Democrats take steps to circumvent the parliamentarian. As shared previously, the budget reconciliation process would enable the Senate Democrats to pass immigration reform on a simple majority without Republican votes, but only if such provisions are ruled to not be “extraneous” to the national budget.

However, our chances for winning reform this year are not over. Senate Menendez has already indicated Senate Democrats will turn to a “Plan C” immigration proposal (“I disagree with her ... but we'll go to plan C.”) and will soon present it to the Parliamentarian, this time via use of parole and visa recapture. Commenting on Plan C, Representative Espaillat said, “The next one in line is this parole option, which is not as ambitious as the first two, but it also brings relief to a significant number of people that are here without any documentation and allows them the ability to work.” Both the House and the Senate Democrats are considering five-year renewable grants of parole to all immigrants who have lived in the United States since 2011.

Due to timing issues, the House may vote on its own version of the reconciliation bill before the parliamentarian rules. The House bill includes many of the legal immigration provisions AILA has been fighting for that help family, employment, and DV visa backlogs (see our summary of those provisions in the original House bill). It would also impose new fees on several applications and petitions to offset the cost of the bill. Tentatively, after a long round of amendments (a “vote-a-rama”) some time in December, the bill would go back to the House for passage and then onto the President’s desk sometime in late December or early January. It will be critical in the coming month that AILA members and advocates keep the pressure on Congress to enact immigration reform as part of the budget reconciliation bill.

Take Action

AILA continues to advocate for our top priorities be included in the bill, including a legalization program that provides a path to citizenship for the largest possible undocumented population. Beyond legalization, AILA has also worked to include provisions that prevent future loss of immigrant visas, and exempt certain immigrant visa applicants from the immigrant visa limitations. AILA has also pushed for provisions that would expand access to legal representation and needed Immigration Court reforms. Notably, AILA has also underscored for Congress the importance of opposing anti-immigrant amendments, including those that would narrow access to the proposed parole provision, create barriers to accessing visa numbers, and undermine access to asylum or increase detention of migrants at the southern border. Senate leaders will continue to develop proposals consistent with the budget resolution passed by the House and Senate in August.

AILA will continue to monitor developments in this fast-moving process.

AILA Resources

Partner Resources

Legislation Updates

Members of Congress Statements

  • Senator Alex Padilla (D-CA) remains optimistic for immigration reform through reconciliation. [Sacramento Bee, October 8, 2021]
    • “I haven’t given up on the reconciliation opportunity at all. . .We’re going to keep fighting. I know the parliamentarian said ‘no’ to an initial proposal that we had in front of her, but there’s still a number of different options that I think fit the criteria for budget consideration.”
  • Senator Joe Manchin (D-WV) is skeptical of immigration through immigration reform. [Latino Rebels, October 4, 2021]
    • “I don’t think it’s going to be in there. I really don’t. I think it’s too big for that.”
  • Senate Majority Leader Chuck Schumer (D-NY) is deeply disappointed but ready to keep fighting with alternatives. [Washington Post, September 19, 2021]
  • Durbin, Padilla Statement on Parliamentarian’s Ruling Regarding Pathway to Legal Status Via Reconciliation (Press Release, September 19, 2021)
    • “We are deeply disappointed in the Parliamentarian’s decision, but the fight for immigration reform will continue. Senate Democrats have prepared an alternative proposal for the Parliamentarian’s consideration in the coming days.”
  • Robert Menendez Statement on Senate Parliamentarian’s Decision to Block Immigration Proposals in Budget Reconciliation (Press Release, September 19, 2021)
    • “We strategized and prepared solid arguments for the Senate Parliamentarian on the merits of providing a pathway to citizenship through the reconciliation process, and while I disagree with her decision today, I always knew this would be a long process. I and my Democratic colleagues intend to continue working until we get to yes with the Parliamentarian.”
  • Congressional Hispanic Caucus Chair Statement on Parliamentarian’s Ruling Regarding Pathway to Legal Status Via Reconciliation (Press Release, September 20, 2021)
    • “While we did not get the decision we wanted from the Senate Parliamentarian, the fight is far from over,” said Chair Dr. Ruiz. “
  • Senate Majority Leader Chuck Schumer (D-NY) hopes to cover as many people as possible in the budget plan. [Washington Post, September 4, 2021]
  • Senator Dick Durbin (D-IL) Urged His Colleagues to Take the Opportunity to Pass Pathway to Citizenship in Reconciliation Bill. [Floor Speech, August 9, 2021]
  • Senate Budget Committee Chair Bernie Sanders (I-VT) Reaffirmed the Inclusion of Immigration Reform in Budget Resolution. [Press Release, August 9, 2021]
  • House Speaker Nancy Pelosi (D-CA) Clearly Supported Immigration Reform in Reconciliation Bill in Press Conference with House Leadership. [Roll Call, April 7, 2021]

Government Updates

  • House Build Back Better Act Text as of October 28, 2021 (immigration provisions on page 794)
  • House Judiciary Committee Immigration Legislative Text
    • On September 13, 2021, the House Judiciary Committee completed a mark-up of the Committee’s portion of the immigration provisions in the Build Back Better Act. The recently released text of these provisions includes a pathway to citizenship for Dreamers, TPS and DED holders, and essential workers (including agricultural workers). The definition of essential worker is based on the DHS’ Cybersecurity & Infrastructure Security Agency (CISA)’s Advisory Memorandum on Ensuring Essential Critical Infrastructure Worker’s Ability to Work During the Covid-19 Response, issued on August 10, 2021. Other reforms included in the text are the recapture of unused green cards and restoring the availability of certain immigrant visas. There is also additional investment for USCIS to process these new applications and reduce processing backlogs. While some amendments were offered during mark-up that would have removed or limited eligibility for these provisions, they were voted down and the legislation passed 25-19 on a party line vote. The final text is still subject to change as the bill makes its way through the Senate and back to a House floor vote on the reconciled bill.
  • Budget resolution text provides general instructions for committees to draft legislation as outlined in the FY2022 Budget Resolution Agreement Framework and the adopted amendments.

Media and Opinion Editorials

Cite as AILA Doc. No. 21091005.