Select Page

Where do things stand with immigration reform in Congress? 

If you’ve tried following the news coming out of Washington, D.C. about the Democrats’ effort to get a major social policy and spending bill across the finish line, you may feel unsure about which policies are in and which are out. Don’t worry—the lengthy negotiations and the ongoing give and take can make it difficult to find reliable information about the bill, called the Build Back Better agenda. 

Most people are aware of the child tax credit and universal pre-K policies included in the Build Back Better plan. But immigration reform provisions have received significantly less coverage from the media, despite the potential to reshape federal immigration policy for the first time in decades. 

The following is a summary of where things stand on the prospect of immigration reform remaining in a final version of Build Back Better, and what provisions are currently included in the bill:

What immigration provisions are included in the Build Back Better bill? 

While a pathway to citizenship for the estimated 11 million-plus undocumented immigrants in the U.S. is not included in the Democrats’ reconciliation bill, the proposed reforms would do more to change immigration policy than at any time since 1986. 

Specifically, the proposed provisions would:

  • Allow millions of undocumented immigrants to apply for work permits—an estimated 7 million immigrants could be granted formal admission into the country under a process called humanitarian parole after they file an application, pay a fee and pass background checks.
    • To qualify, immigrants must have arrived before Jan. 1, 2011, and lived in the U.S. ever since. Work permits would remain valid for five (5) years, and could be renewed once, which could extend protections through September 2031.
  • Establish a process to apply for and receive temporary protection from deportation—Nearly 65 percent of the undocumented immigrants in the United States could be protected from deportation for up to a decade.
  • Provide a way to seek permission to travel abroad, including to immigrants’ countries of origin—many of the millions of undocumented immigrants in America have not been able to return, legally, to their native countries since arriving in the U.S. 

What are some potential roadblocks to passing immigration reform through Build Back Better?

  1. The Senate Parliamentarian 

The Build Back Better legislation is being advanced through Congress through “budget reconciliation,” an expedited process which allows the majority Party in the Senate to avoid a filibuster and pass legislation that has a direct impact on taxation, spending, or the debt limit. Provisions that do not change spending levels or impact revenues or the debt limit could be prohibited by the official referee in the Senate, the Parliamentarian. The Parliamentarian makes an assessment and issues a ruling on whether the provisions of any budget reconciliation bill are technically related to tax, spending, or the debt limit. 

There is reason to think that the immigration provisions included in the Build Back Better reconciliation bill may be deemed valid by the Senate Parliamentarian. Axios reported on November 24 that the Senate parliamentarian “met with Democratic staff about the immigration provisions and did not rule out their inclusion” in the Build Back Better agenda. (Source: Axios, Democrats get hopeful sign from parliamentarian on immigration)

  1. Negotiations between factions of the Democratic Party 

The development of concrete legislation to enact the Build Back Better agenda has been a months-long process of internal negotiations between the progressive wing of the Democratic Party and the more moderate, or centrist, faction. On November 19, the bill passed the House in its first key test of consensus within the fragile coalition. And in the Senate, where the fate of the agenda now rests, two particular senators have proved central to the overall scope and size of the current bill: Sen. Joe Manchin (D-WV) and Sen. Kyrsten Sinema (D-AZ). 

While Sen. Sinema has signaled her general support for immigration provisions in the legislation, Sen. Manchin said in a Fox News interview that “[F]or us to even be talking about immigration without border security is ludicrous.” It is unclear whether Sen. Manchin will seek changes to the immigration provisions, or oppose them altogether, pending a formal decision from the Parliamentarian. (Source: Fox News, Manchin deals major blow to Democratic efforts to include amnesty for illegal immigrants in spending bill)

Will Congress pass immigration reform and the Build Back Better agenda?

As it stands, some form of historic immigration reform seems more likely than not to be included in the Build Back Better reconciliation package. Majority Leader Chuck Schumer has said that the bill could be passed by the Senate before the end of this year. If the House accepts any changes made in the Senate, the state of immigration policy in the United States will be significantly different and life for millions of undocumented immigrants will be altered for years to come.