Immigration relief in flux as Biden unveils reconciliation framework

Democrats have struggled to include immigration changes in budget bill

Illinois Rep. Jesús “Chuy” García says he can’t support a reconciliation package that does not include an immigration overhaul.  (Caroline Brehman/CQ Roll Call file photo)
Illinois Rep. Jesús “Chuy” García says he can’t support a reconciliation package that does not include an immigration overhaul. (Caroline Brehman/CQ Roll Call file photo)
Posted October 28, 2021 at 3:35pm

The White House tentatively set aside $100 billion for immigration changes in its framework for Democrats’ sprawling reconciliation package. However, the fate of those provisions remains up in the air, with an ultimate determination on their eligibility to be made by a Senate adviser.

The $1.75 trillion social spending framework, released Thursday morning, represents President Joe Biden’s attempt to strike a deal with Democrats and includes spending on clean energy investment and child care. That topline does not include the funds earmarked for immigration.

The White House framework notes the $100 billion investment aims to “reform our broken immigration system,” as well as reduce backlogs, expand legal representation and improve asylum and border processing. But the section includes an important caveat: These provisions must be “consistent with the Senate’s reconciliation rules.”

Democrats have so far faced an uphill battle to include sweeping immigration changes in the reconciliation bill, which advocates stress could be the party’s last chance for years to help undocumented immigrants before Democrats risk losing their congressional majorities in 2022.

Senate Parliamentarian Elizabeth MacDonough, the chamber’s adviser, has rejected Democrats’ last two attempts to include provisions that would put millions of undocumented immigrants on a path to permanent residency. She has reasoned the proposals do not comply with the Byrd rule, which limits the types of measures that can be included in a reconciliation bill.

Lawmakers are now preparing to pitch a more watered-down “Plan C,” which would give undocumented immigrants who entered the country before January 2011 work permits and deportation protections, but not a green card, according to a Senate aide and other people familiar with the plans.

White House Press Secretary Jen Psaki said Wednesday that both Biden and Vice President Kamala Harris “strongly supported” including immigration in the original reconciliation package as well as efforts to “come up with alternative ideas that might be able to make its way through the parliamentarian.”

Senate Judiciary Chairman Richard J. Durbin said he’s seen a preliminary score from the Congressional Budget Office and hopes to make the third pitch to the parliamentarian soon.

“I hope it’s this week. I hope we’re ready,” the Illinois Democrat said Tuesday.

On Thursday, Durbin told reporters that Senate Democrats were “gathering the information for the budget impact” with the CBO and will “discuss possibilities that might follow from that.”

House stakes

House Democrats included provisions in a draft version of the reconciliation bill released Thursday that would allow immigrants who have been in the country since 2010, and who have shown “good moral character,” to apply to become permanent residents.

That option, the second one presented by Senate Democrats, was informally rejected by MacDonough last month. However, it could serve as a placeholder in the House bill, which would then allow Senate Democrats to substitute in the Plan C option if approved by the parliamentarian, according to a person familiar with their plans.

On Thursday, Sen. Bob Menendez, D-N.J., a key player in immigration talks, confirmed the House strategy but said, “We’re still exercising all of our options.”

The House text also included provisions to make more green cards available and to allow individuals to pay fees to be exempt from per-country caps, which would help legal immigrants, largely from India, who have waited years for a green card.

Menendez said the green card provisions “will at some point” be submitted to the parliamentarian for review. But Durbin suggested those plans also appear to be up in the air. 

A potential absence of immigration relief in the reconciliation package would likely anger progressive House Democrats, who have ramped up calls to Senate leaders to override MacDonough’s immigration decisions.

The Congressional Progressive Caucus has listed a path to citizenship for undocumented immigrants in its top five priorities for reconciliation.

More than 40 House Democrats, including Lou Correa of California, Adriano Espaillat and Alexandria Ocasio-Cortez of New York, and Jesús “Chuy” García of Illinois, have called for MacDonough’s findings to be disregarded.

In a letter to Senate Majority Leader Charles E. Schumer earlier this month, they argued the Senate’s presiding officer — likely Harris, Vermont Sen. Patrick J. Leahy, who is the chamber’s president pro tempore, or a Leahy designee — has the authority to issue their own decision on the matter that would trump MacDonough’s.

Espaillat, García and Correa have also previously indicated they would not vote for a reconciliation package that did not include immigration.

“If there’s no immigration reform, I cannot support this bill,” García told reporters Thursday after the White House framework was released. If the House passes the Senate-passed bipartisan infrastructure bill before the reconciliation bill, Democrats “could lose all of our leverage in ensuring that there is an immigration relief piece in the reconciliation package,” he said.

Texas Rep. Henry Cuellar, a more moderate Democrat and vice chair of the Homeland Security spending panel, said Thursday he hoped to see the immigration provisions included in the ultimate text but acknowledged the challenges involved.

“I hope we can do it. But if it’s not, I’m still going to look at the overall good. I want to see immigration, but I know that’s always a difficult part of it,” he said.

Lindsey McPherson, Jennifer Shutt and Laura Weiss contributed to this report.