Updated: Jul 29
by Yen-Yi Anderson, on October 4, 2021
Path to citizenship was one of the main campaign promises during President Biden’s election bid. Accordingly, when President Biden took office, he sent a bill to Congress to create a path to legal status for undocumented immigrants as Part of His Commitment to Modernize our Immigration System. That proposed bill was known as the U.S. Citizenship Act of 2021 to establish a new system to responsibly manage and secure our Path to citizenship was one of the main campaign promises during President Biden’s election bid. Accordingly, when President Biden took office, he sent a bill to Congress to create a path to legal status for undocumented immigrants as Part of His Commitment to Modernize our Immigration System. That proposed bill was known as the U.S. Citizenship Act of 2021 to establish a new system to responsibly manage and secure our border, keep our families and communities safe, and better manage migration across the Hemisphere.
According to the Fact Sheet published by the White House in January, 2021, the bill provided hardworking people who enrich our communities every day and have lived here for years, in some cases for decades, an opportunity to earn citizenship. The legislation intended to modernize our immigration system, prioritize keeping families together, grow our economy, responsibly manage the border with smart investments, address the root causes of migration from Central America, and ensure that the United States remains a refuge for that fleeing persecution.
Unfortunately, that bill, the U.S. Citizenship Act, barely made any progress since it was introduced in February. Even though the House of Representatives passed the Dream and Promise Act and the Farm Workforce Modernization Act in March, it did not provide any legislative solution. With that, one of the possible ways left for President to deliver President Biden his campaign promise was through the budget reconciliation process. Even the DACA program suffered a setback when a court decision struck down the program. Hence, the need to find a solution to immigration issues is higher now. And finding a solution through standard senate procedure is very remote because the majority of Democrats in the Senate are very slim, and the chance of getting Republican support to pass a bill is even smaller. Democrats hold such a slim majority in the Senate, moving any bill in this manner.
Budget reconciliation turned out to be the only option that may remain for Democrats.
What is the budget reconciliation process?
The regular legislative process is subject to Senate filibuster (60-vote supermajority requirement for passing legislation in the Senate (that is, refusing to end debate on the bill and move on to a vote). However, the bills which go through the reconciliation process are not subject to Senate filibuster.
Under the budget reconciliation process, a bill can move to a vote if a simple majority agrees to it. Thus, a budget reconciliation bill could pass with a bare majority of 50 votes, with Vice President serving as a tiebreaker.
Democrats had initially proposed that the spending bill provide a pathway to permanent status (a green card) for roughly 8 million people.
Which immigration-related provisions were proposed through “budget reconciliation.”
Democrats proposed immigration changes in a $3.5 trillion budget reconciliation measure, in an effort to create a pathway to citizenship for millions of immigrants for the first time in decades.
Who will qualify to obtain permanent status per this bill?
The following four categories of undocumented immigrants were proposed to be covered under this bill:
(1) undocumented immigrants who came to the United States as children;
(2) undocumented immigrants who have worked since January 1, 2020, in “essential” jobs;
(3) individuals who had Temporary Protected Status on January 1, 2017; and
(4) individuals who were eligible for Deferred Enforced Departure on January 20 of this year.
As a result of this process, Democrats could create a path to citizenship without any Republican support if they unify all 50 Senators in their caucus and a majority in the House to pass a budget reconciliation bill.
However, the ability of Senate Democrats to create a path to citizenship through reconciliation is not a guarantee. For a provision of law to pass through budget reconciliation, it must satisfy the “Byrd Rule.”
What is Byrd Rule?
According to Byrd Rule, the reconciliation cannot be used for provisions that are “extraneous” to the federal budget. In other words, provisions unrelated to the basic purpose of raising and spending money cannot be passed through reconciliation.
However, there was a historical precedent for using reconciliation to increase immigration. In 2005, Senate Republicans passed a bill through the reconciliation process that would have significantly increased employment-based immigration. They did so by imposing a $500 fee on immigrant visa petitions in those categories.
The imposition of new fees in the 2005 reconciliation bill allowed senators to expand immigration through a way that passed the Byrd Rule.
Thus, this precedent offered some solution as to how Democrats could create a path to citizenship in the 2021 budget reconciliation bill through some form of a revenue-raising fee on applications to obtain lawful status.
What is the limitation of the Byrd Rule?
However, a bill moved through the budget reconciliation process must change “outlays or revenues” and cannot contain any provisions that are “extraneous” to the federal budget. Provisions that are seen as unrelated to or not primarily focused on raising and spending money are not allowed. It is up to the Senate parliamentarian to decide what provisions are permitted in a bill under the budget reconciliation process.
Who decides whether a bill can pass the Byrd Rule?
Usually, the Senate Parliamentarian, a lawyer hired by the Senate to rule on matters of Senate procedure. However, even if the Parliamentarian decided that an immigration provision could not be passed through a budget reconciliation bill, the Vice President could theoretically overrun the decision.
Democrats argued that their immigration provisions should be allowed under the budget reconciliation process on economic grounds, primarily because allowing millions of immigrants to earn green cards would also make them eligible for public benefits. Numerous economists have also argued that providing a pathway to permanent status for millions of people would significantly positively impact the U.S. economy. For instance, one study estimated that the Democrats’ proposals “would add $1.5 trillion to the U.S. gross domestic product, create 400,000 new jobs, and raise the annual wages of all Americans by an average $600 over the next decade.”
Senate parliamentarian Elizabeth Macdonough disagreed with the Democrats.
On, September 19, 2021, decision, Elizabeth MacDonough found the proposed provisions to help millions of undocumented immigrants on a track to permanent residency, did not comply with Senate procedural rules governing the reconciliation process.
MacDonough said “The policy changes of this proposal far outweigh the budgetary impact scored to it, and it is not appropriate for inclusion in reconciliation. The consequences of putting millions of people on a path to citizenship would go far beyond the narrow scope of the nation’s budget”. She continued, “Lawful permanent resident “status would give these persons freedom to work, freedom to travel, freedom to live openly in our society in any state in the nation, and to reunite with their families, and it would make them eligible, in time, to apply for citizenship – things for which there is no federal fiscal equivalent,” “Changing the law to clear the way to LPR status is a tremendous and enduring policy change that dwarfs its budgetary impact.” MacDonough concluded that “the social and political ramifications of the Democratic proposals go beyond their budgetary impact and therefore are “not appropriate for inclusion in reconciliation.”
Macdonough did not dispute that the proposed immigration measures would have an enormous economic impact. Instead, she argued that the non-economic aspects of the proposed measures “outweigh” the financial aspects.
Though the efforts by Democrats to include immigration reform provisions in the spending bill seems to have a rough start, it is just the beginning of the process. It is not likely to end Democrats’ efforts to pass some immigration relief through reconciliation, Senate Majority Leader Charles E. Schumer said that “Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days.
Fight for immigration reform will continue.
Yen-Yi Anderson, Managing Partner of Anderson & Associates, founded the law firm in January 2014. Yen-Yi Anderson focuses her practice on excellence in business immigration, commercial law, and civil litigation.