Statutes of Liberty: Build Back Better

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Is there a massive amnesty in Build Back Better? Yes. Will it happen? Probably not.

The Build Back Better Act (BBBA) is not about immigration, but it’s such an enormous bill that the even relatively minor parts of it which do concern immigration would, in toto, constitute the most consequential immigration legislation since 1986.

What are the most important provisions of BBBA for immigrants in the United States?

• Section 60001 — Parole in Place

This section would offer “parole” to approximately 6 million unauthorized immigrants in the United States. “Parole” has a technical meaning in U.S. immigration law — it has nothing to do with the concept of parole in criminal law. Instead, think of parole as permission to enter the United States.

People outside the United States are already able to apply for parole if, for some reason, our ordinary visa system is not well-suited to the situation. “Parole in place” is, therefore, a grant of parole to persons already inside the United States.

The real-world effect of Section 60001 would be the grant of work permits and travel permits to an estimated six million unauthorized immigrants who entered the U.S. before January 1, 2011. These benefits would be five years in length, renewable for another five years — until September 30, 2031.

Approximately six million people would be eligible for this benefit. Although these parolees would not be eligible for green cards, parolees would have the three most important elements of immigration status in the United States — the ability to work, the ability to travel and substantial protection against deportation.

• Section 60002 — Visa number recapture

This highly technical (but consequential) section concerns something called “visa number recapture,” in which the United States would make green cards slots available which were not used in prior years. Unlike earlier immigration reform proposals, the BBBA limits the number of slots recaptured to between 250,000 and 400,000.

• Section 60003 — Allowing early applications for adjustment of status

Under current law, you can’t apply for a green card if you’re waiting in line for a visa number to be available. Section 60003 changes that by allowing you to apply for a green card while you wait for a visa number to be available, which is a big deal because you can apply for a work and travel permit while the application for a green card is pending. Section 60003 would not create any new eligibility categories for green cards, but it would force-feed a large number of people into the system all at once, and make them eligible for work and travel permits until their green cards are adjudicated.

• Section 60004 — Minor fee increases

Section 60004 would allow for minor fee increases to items like green card renewals ($500), H-1B petitions ($500), applications to extend nonimmigrant status ($500 — see the pattern?) and certain work permit applications ($500).

Visitors and other non-immigrant entrants to the United States would be charged $19 upon arrival, which is a puzzling addition, but there you have it.

• Section 60005 — Payola

$2.8 billion would be appropriated to help USCIS adjudicate Section 60001 applications, reduce backlogs and improve efficiency. It’s hard to appreciate numbers like $2.8 billion outside of context, so here’s the context that matters: USCIS’s enacted budget for FY 2021 was $4.7 billion, so $2.8 billion is a pretty substantial injection of funds.

We’re happy to provide you with our analysis, but we also encourage readers to read alternative views. The CBO provides a useful summary here; for analyses from competing sources, see this analysis from the American Immigration Lawyers Association (pro) and the Center for Immigration Studies (contra).

Will the Immigration Provisions of BBBA Withstand the Byrd Bath?

Democrats do not have the votes in the Senate to pass the BBBA over a likely Republican filibuster. For this reason, Congressional Democrats have chosen to use the reconciliation procedure to evade a filibuster. The reconciliation procedure, as most readers know, is used when the House passes one version of a bill and the Senate passes another; reconciliation allows the two bills to be combined via a filibuster-proof negotiation.

Reconciliation can only be used when the bill directly affects the federal budget. If a provision does not have a budgetary impact — and not just an ‘incidental,’ but a substantial impact — then Senators can object to the provision via a point of order.

Our prediction is that the immigration provisions described above will get drenched in the Byrd bath. The Senate parliamentarian has already rejected two previous attempts by Congressional Democrats to integrate immigration reform provisions into BBBA. Joe Manchin (D-WV), Lord of the Black Hills, First of His Name — has indicated some skepticism both about whether the immigration provisions will pass the Parliamentarian’s scrutiny, and, if so, survive subsequent Senatorial wrangling.

Could some provisions (like the Payola Provision described above) survive in isolation? Yes. But, without the larger justification of the Parole and Early Adjustment provisions, it is hard to see how even USCIS could justify such a generous budgetary expansion.

As always, we welcome your thoughts and will do our best to respond.