Democrats hoped to include provisions shielding undocumented immigrants from deportation for a period of five years and allowing those who arrived in the US prior to 2011 — numbering an estimated 7 million — to apply for five-year renewable employment authorization in their $2.2 trillion climate and spending bill, known as the Build Back Better Act.
However on Thursday, it was announced that Senate parliamentarian Elizabeth MacDonough has rejected that proposal.
Democrats have been trying to pass the Build Back Better Act through budget reconciliation, a special legislative process that allows measures to pass the Senate with a simple majority. Since Democrats have a one-vote majority, reconciliation allows them to bypass the need for Republican support. Congressional rules require reconciliation measures to be related to the budget, and the parliamentarian is tasked with determining what can and cannot be passed in this way, so MacDonough was asked to weigh in.
MacDonough has repeatedly said that immigration reform has effects that go beyond the budget, and now decided that even Democrats’ latest and narrowest plan for reform would have impacts far outweighing its budgetary consequences, making it inappropriate to include in a reconciliation bill.
It’s unclear where Democrats can go from here on immigration. With only a narrow majority in the House, a 50-50 Senate, and intense polarization on immigration, there is little room for them to pass remedial fixes for undocumented immigrants living under the threat of deportation — let alone the kind of far-reaching systemic reforms that they have promised voters for years.
Democrats have limited options to make progress on immigration
Senate Democrats so far have dismissed the idea of overruling the parliamentarian, but it can be done. The parliamentarian’s decision is technically nonbinding advice that Democrats could override. But many have been unwilling to do so, in part because it could create a precedent under which Republicans might overrule the parliamentarian to push through their own political goals in the future.
Democrats are still planning to present MacDonough with additional immigration proposals, and will likely do so early next year.
“It’s not as if she has said that you can’t do immigration at all, which she could have said the first two times that Democrats talked to her. So I think there’s definitely an opening there to work with her and see what she feels would meet the requirements,” said Kerri Talbot, deputy director for the advocacy group Immigration Hub who has been working with Democrats on their proposals for the parliamentarian.
Other potential immigration provisions that were included in the House version of the bill
There are other potential immigration provisions that were included in the House version of the bill. That includes a provision that would recover millions of green cards that went unused in the years since 1992. Under current law, any allotted green cards not issued by the end of the year become unavailable for the following year. In 2021, the US failed to issue some 80,000 green cards due to processing delays, and those cards have now gone to waste.
Another provision would allow people who have been waiting to be issued a green card for at least two years to pay additional fees to bypass certain annual and per-country limitations and become permanent residents years, if not decades, sooner than they would have otherwise. And it would preserve green cards for diversity visa winners from countries with low levels of immigration to the US who were prevented from entering the country on account of Trump-era travel bans and the pandemic.
Democrats now hope to pass the legislation early in 2022.