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Democrats make immigration case to Senate parliamentarian

For the first time in decades, Congress inched closer to passing a path to legal status for millions of undocumented immigrants

People attend a New York City protest supporting DACA, Deferred Action for Childhood Arrivals, in August.
People attend a New York City protest supporting DACA, Deferred Action for Childhood Arrivals, in August. (Kena Betancur / AFP via Getty Images)

The Senate parliamentarian heard arguments Friday on a plan by Democrats to include immigration provisions in a budget reconciliation bill, bringing Congress one step closer to passing a path to legal status for millions of undocumented immigrants for the first time in decades.

Democratic lawmakers are pushing for the inclusion of provisions that would provide a pathway to citizenship to undocumented immigrants brought to the U.S. as children, undocumented farmworkers, temporary protected status holders and essential workers.

Following years of failed negotiations, partisan battles and outside advocacy, Democrats aim to pass the bill through a budgetary maneuver allowing only partisan votes. If the parliamentarian permits the provisions, it could be the best shot Democrats have at legalizing a broad population of immigrants, a longtime priority.

Meanwhile, the House Judiciary Committee is scheduled Monday to mark up its portion of the reconciliation bill text, including immigration provisions.

Democrats have pointed to previous reconciliation bills that included immigration policies, including a 2005 bill that recaptured unused green cards, and argued that making millions of new people eligible for public services would have a significant impact on the nation’s budget — a key element for bills that pass muster under arcane Senate rules for reconciliation measures.

Republicans, who are fiercely opposed to the bill’s overall spending level, have dismissed those arguments as far-fetched.

Sen. John Cornyn of Texas, the top Republican on the Judiciary Committee’s immigration panel, slammed Democrats in a tweet Friday for “pursuing partisan bills rather than bipartisan immigration reform.”

The state of play reflects fierce partisan divides over immigration that have only grown deeper in recent years. The 2013 immigration overhaul bill, which passed in the Senate but did not get a House vote, was spearheaded by a bipartisan group of eight senators.

Eight years later, another bipartisan group of senators that met regularly throughout 2021 has yielded little progress, and Democrats have decided to go it alone.

“What’s different about this time is that it’s not a bipartisan effort,” said Julia Gelatt, a senior policy analyst at the Migration Policy Institute. “The whole point of the reconciliation process is that it could be a purely partisan effort with the Democrats supporting this legislation.”

A procedural battle

Democrats’ ability to pass legislation establishing a path to legal status for these immigrants hinges, in part, on whether Senate Parliamentarian Elizabeth MacDonough will allow it. Earlier this year, MacDonough rejected their attempt to push through a minimum wage increase via budget reconciliation.

MacDonough could determine that some or all of these immigration provisions do not comply with the Senate’s Byrd Rule, which prohibits provisions that do not directly impact the federal budget from passing via reconciliation. But Democrats are prepared to engage in back-and-forth with the parliamentarian and come back to the table with alternative provisions.

“Unlike minimum wage, it’s not a one-shot deal,” said Kerri Talbot, deputy director of the Immigration Hub and former chief counsel for Sen. Bob Menendez, D-N.J.

One backup option under consideration would be to update the year on existing immigration programs, such as the immigration registry and a program known as 245(i), according to a person familiar with the discussions. Both programs would allow undocumented immigrants who have lived in the U.S. for a certain number of years to become permanent residents.

The 245(i) program allows undocumented immigrants with U.S. relatives or employers who applied to sponsor them for green cards to become permanent residents if they pay a $1,000 fee, regardless of how they entered the country.

However, the program currently covers only people whose relatives or employers filed green card petitions for them before April 2001.

The immigration registry would also allow immigrants who have lived in the U.S. since a certain year, without a criminal record and who demonstrate “good moral character,” to get green cards. That program is even more outdated, though, currently applying only to those who entered the U.S. before 1972.

By moving up the years on those two programs, Democrats could potentially establish a path to permanent residency for individuals from all of the targeted categories of immigrants, including undocumented immigrants and some who have been waiting in lengthy green card backlogs. It would leave out, however, those who entered the U.S. after the newly specified year.

If the parliamentarian rejects Democratic lawmakers’ efforts to include immigration provisions in the reconciliation bill, advocates could push for Congress to overrule her or nix the Senate filibuster altogether, allowing any bill to pass the Senate with a simple majority.

“This is the closest that we have ever been,” said Greisa Martinez, deputy director at United We Dream, an organization that advocates for immigrant youth. “The American public is behind us. This has become a Democratic and progressive priority. We have a process. The economic impact cannot be clearer.”

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