House Democrats Swap One Amnesty for Another in Second Version of Build Back Better Act

November 5, 2021
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On Wednesday, House Democrats released the second version of the Back Better Act in their continued effort after weeks of debates and in-fighting to finally pass the centerpiece of President Biden’s legislative agenda.  House Democrats have been frustrated by negotiations with more moderate members of their party, especially in the Senate, who argue the bill should be smaller in scope and cost.  They have also been frustrated by the Senate parliamentarian, who has refused to allow the inclusion of various immigration measures because they violate the Senate rules related to the budget reconciliation process. 

To improve the bill’s chances of passing the Senate, House Democrats have scrapped the language in Section 60001 in the first version of the bill (released October 28), which offered illegal aliens green cards through the immigration registry, and replaced it with a provision that offers mass parole to anyone who entered the U.S. before January 1, 2011.  Parole is offered for five years and provides illegal aliens virtually the same benefits as green cards. 

The second version of the Build Back Better Act maintains the remaining immigration provisions found in Sections 60002, 60003, 60004, and 60005 of the first version, in identical form.  Those provisions increase legal immigration across the board and allows wealthy green card applicants to pay money to cut in line ahead of millions waiting all over the world.  Finally, the legislation dramatically raises the fees for a sweeping array of immigration benefits in order to pay for the amnesty.  Below is a short summary of the immigration provisions in the second version of the Build Back Better Act.

Section 60001. Protections and Work Permits  (p.862)

Section 60001 of the Build Back Better Act provides amnesty to all illegal aliens who entered the U.S. before January 1, 2011 by allowing them to be paroled into the U.S.  Parole, also called "humanitarian parole," is a way for the government to grant a foreign national temporary permission to enter the U.S. without granting the person legal status.  (See INA 212(d)(5)(A); 8 USC 1182(d)(5);  State Dept, Fact Sheet, Nov. 14, 2014).

The statutory authority to grant parole comes from Section 212 of the INA, which gives DHS discretion to "parole into the United States temporarily under such conditions as [it] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit....” (INA § 212(d)(5)(A) (emphasis added))  “[W]hen the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” (Id.)

Section 60001 requires the government to grant parole to illegal aliens for a period of five years, which shall be extended until Sept 30, 2031, if the alien:

  • Entered the U.S. before January 1, 2011, whether legally or illegally;
  • Has continuously resided in the U.S. since such entry;
  • Is not in admissible due to:
    • Criminal activities, pursuant to INA 212(a)(2)
    • National security grounds, pursuant to 212(a)(3)
    • Alien smuggling, pursuant to 212((a)(6)(E);
    • Ineligibility for citizenship, pursuant to 212(a)(8);
    • The practice of polygamy, pursuant to INA 212(a)(10)(A);
    • International child abduction, pursuant to INA 212(a)(10)(C);
    • Illegal voting, pursuant to INA 212(a)(10)(D);

AND

  • Files an application;
  • Pays a fee sufficient to cover the cost of processing the application;
  • Completes a security and background check to the satisfaction of the Secretary;

Section 60001 also provides that during the time the alien bas parole, the government MUST:

  • Provide the alien work authorization;
  • Provide the alien work authorization;
  • Classify the alien as eligible for a REAL ID driver’s license, allowing him/her to board aircraft, enter federal buildings, etc.

Finally, Section 60001 provides that any information contained in an alien’s application for parole under this section shall remain confidential and shall not be provided to Immigration and Customs Enforcement (ICE) or Customs and Border Protection for purposes of immigration enforcement.

Through this provision, House Democrats are attempting to create a statutory program that is similar to DACA, where illegal aliens are treated the same as green card holders. Paroled aliens will not be given legal status, but they will be given work authorization, travel authorization, and driver’s licenses that have been until this point only available to citizens and legal aliens. 

Moreover, parolees (like refugees) are immediately eligible for many benefits by law.  While one might expect this for refugees, parolees are subject to similar rules.  From the start, aliens with parole are eligible for Obamacare, and will qualify for Social Security and Medicare once they have accumulated sufficient work history because federal regulations deem aliens with parole to be “lawfully present.” (See 45 CRF 155.20, 8 C.F.R. 103.12; 42 U.S.C. § 402(y)) Within a year, they will become “qualified aliens,” which, over the course of five years, makes them eligible for all federal means-tested public benefits.  (See 8 U.S.C. §§ 161116131641); FAIR Legislative Update, Nov. 18, 2014)

This kind of mass parole, offered for a period of 10 years, will no-doubt be challenged as unconstitutional as it clearly flies in the face of the statute authorizing parole, INA 212(d)(5).  That statute provides that parole may be granted but only on a case-by-case basis, for a temporary period of time, and for urgent humanitarian reasons or significant public benefit.  No reasonable interpretation of Section 60001 could conclude that it meets these requirements. 

Nevertheless, proponents of this measure clearly hope that if they pass this parole amnesty now, it will, after 10 years, prove politically impossible to repeal—again, just like DACA.  The government will spend an unfathomable number of dollars and man hours intaking, processing, and granting parole to illegal aliens while visa applications from legal applications languish.  Then, after 10 years of the program, parole recipients and their advocates will claim reliance on the program and that it would be inhumane to repeal it. 

Section 60002. Recapture of Unused Immigrant Visa Numbers (p. 865)

Section 60002 increases the annual minimum number of family-based green cards available from 226,000 to 226,000 plus the number of unused employment-based green cards from the prior year (if any).  In addition, Section 60002 seeks to “recapture,” or add to the annual worldwide green card cap: (1) the number of family and employment-based visas that were available, but not issued, since 1992.  It also restores diversity visas for aliens who were selected between 2017 and 2021 but were refused a visa or denied admission to the U.S. due to various border security, national security, and travel-related executive orders issued by President Trump, or due to slow visa processing resulting from the Covid pandemic.

Section 60003. Adjustment of Status. (p. 869)

In short, Section 60003 of the House budget reconciliation bill allows aliens to pay money to cut in line for their green cards.

In general, the number of green cards that may be issued is capped by law.  This is true for family-based applicants – unless you are an immediate relative of a U.S. citizens – and employment-based applicants. Those numerical caps, combined with high demand from all over the world, create wait times. Indeed, even after a sponsor files the appropriate paperwork, an alien must usually wait in line – often for years – for a green card to become available and apply for it. To ensure the process is fair, federal law expressly requires that these green cards be issued in the order that the sponsors file the papers. (8 USC 1151(e))

The House Budget Reconciliation bill, however, proposes to turn all of this on its head. Section 60003 allows virtually all aliens, family and employment-based, whose wait time is 2 years or more to cut in line and get their green cards immediately.  It accomplishes this by directing the government to grant aliens who pay specified sums an exemption from the numerical caps, meaning they no longer have to wait in line.  The exemption from the numerical caps is not even discretionary; if the alien pays the money, the government must grant the exemption.

Under Section 60003, the process is two-fold.  First, the legislative language creates a process by which virtually all aliens normally subject to the caps may file their green card application before their turn in line comes up.  They may do this so long as they pay an additional $1,500 fee with the application and an additional $250 for each derivative (meaning spouse and minor child).  The categories of aliens who may file early include:

Then, if an alien files an early application (with the additional fee) and his/her wait time is more than two years, the government is required to waive the numerical limits and may immediately issue the green card, provided the alien pays more money.  How much the alien pays depends on the type of green card sought.

Aliens seeking to cut in line for a family-based green card must pay $2,500.

Aliens seeking to cut in line for an employment-based green card must pay $5,000 if they are applying in the following categories:

  • Extraordinary ability (EB-1A);
  • Outstanding professors or researchers (EB-1B);
  • Multi-national executives (EB-1C);
  • Members of the professions holding advanced degrees or aliens of exceptional ability (EB-2); and
  • Skilled workers, professionals, and other workers (EB-3).

Aliens seeking to cut in line for an EB-5 employment-based green card must pay $50,000.

Section 60003, if passed, would result in the most horrible immigration policy for the United States.  It undermines the entire system within the Immigration and Nationality Act that sets annual immigration limits to ensure diversity and fairness.  In its place it creates a system that favors the wealthy and corporations, who will happily pay a few extra dollars to get their green cards immediately, and discriminates against the average person who has limited means and will only be pushed farther and farther back in line while the government processes the green card applications from wealthy immigrants.  Simply put, Section 60003 is tantamount to codified bribery. 

In addition to the injustice it creates for the individual immigrants, Section 60003 sends a message to the world that U.S. immigration laws are no longer grounded in fairness or equality and that our lawmakers see them as nothing more than a tool for rewarding the favored few.

Section 60004. Additional Supplemental Fees (p. 872)

The purpose of Section 60004 is to raise revenue.  It does so by increases the fees legal aliens must pay for a wide variety of immigration benefits.  These additional fees, charged on top of the regular fees required by USCIS, have no expiration and may not be waived in whole or in part.  Finally, unlike most immigration fees, which are held by USCIS to fund agency operations, these fees will be deposited into the Treasury’s general fund, available to be used for non-immigration purposes.  

Under Section 60004 aliens applying for green cards as a: 

  • Adult, unmarried sons and daughters of citizens;
  • Adult, married sons and daughters of citizens;
  • Adult siblings of citizens; and
  • Spouses or children of legal permanent residents

must pay an additional $100.

Aliens applying for green cards as either an:

  • Employment-based alien classified as extraordinary ability (EB-1A);
  • Employment-based alien classified as outstanding professors or researchers (EB-1B);
  • Employment-based alien classified as multi-national executives (EB-1C);
  • Employment-based alien classified as member of the professions holding advanced degrees or alien of exceptional ability (EB-2); or
  • Employment-based aliens classified as skilled workers, professionals, and other workers (EB-3)

must pay an additional $800.

Aliens, applying for green cards under the EB-5 program must pay an additional $15,000.

Finally, green card holders seeking to renew their green card or replace a lost one must pay an additional $500.

With respect to nonimmigrants (aliens admitted temporarily, such as a tourist, business traveler, student  or temporary worker), Section 60004 imposes an additional fee of $75 for each application and a $19 fee every time the alien departs or arrives in the U.S. and receives an I-94 or I-94W. 

In addition to this baseline increase, Section 60004 requires the following categories of aliens to pay additional fees:

  • Students, whether applying under the F, J, or M categories must pay another $250;
  • Nonimmigrant workers applying under the E (commerce), H-1B (skilled workers), L (multinational executives), O (extraordinary ability in arts, sciences, etc.), or P (artist/entertainer) categories must pay another $500;
  • Aliens seeking to change from one nonimmigrant status to another (such as student to H-1B) must pay another $500.

Section 60004 also charges an additional $500 fee for certain aliens seeking work authorization.  These aliens include:

  • Applicants for green cards;
  • Spouses of nonimmigrant workers classified under the H, L, and O categories;
  • F students seeking Optical Practical Training (OPT);

Section 60005. U.S. Citizenship and Immigration Services. (p.875)

Section 60005 appropriates $2.8 billion to U.S. Citizenship and Immigration Services (USCIS) to carry out the amnesty program found in Section 60001, the cut-in-line program found in Section 60003, and to otherwise reduce processing backlogs.