Is There a Plan D? If Not, Can or Will Democrats Ignore the Parliamentarian to Obtain Immigration Relief for Millions?

by Alan Lee, Esq.

Senator Joe Manchin (D-WV) said yesterday on “Fox News Sunday” that he will not support The Build Back Better Act, the chief legislative thrust of the Democrats that requires all 50 Democratic senators to be on board to pass through the reconciliation process with only Democratic votes. This may signal the end or proved to be a temporary roadblock with Democrats having to further negotiate to pare down the bill with one of their own. If the legislation somehow obtains the 50 votes, the important immigration component will also require further work.

The Senate parliamentarian, Elizabeth McDonough, delivered another blow to the Democrats’ plan to add immigration relief to the Reconciliation Bill on December 16, 2021, by rejecting Plan C, the main component of which would consist of parole of up to 10 years (5 years per application) with accompanying employment and travel authorization for those who enter the US before 2011. Plan A had included a path to citizenship for essential workers, DACA and TPS recipients, and Plan B updated the Registry date under which persons in the US by a certain date could adjust status from its present eligibility date of January 1, 1972 to January 1, 2010. The parliamentarian’s guidance was as follows:

The proposed parole policy is not much different in its effect than the previous

proposals we have considered. The proposal, which would increase the deficit by

$131 billion over 10 years, creates a class of eligible people (those who have been in

the country for 10 years or more) who will qualify for a grant of parole in place

status. This new class would make eligible for parole 6.5 million people - nearly the

same number of people as the previous two plans. CBO estimates that 3 million

people would adjust to LPR status - 2 million of whom would be otherwise ineligible

under -current law. In order to effectuate the policy, the parole proposal changes

the contours of the current parole in place program, making it a mandatory award of

status for qualifying applicants rather than the current discretionary use of the

Secretary’s authority and assessment, which the USCIS website states that the

Secretary grants “only sparingly.” The grant of parole will be accompanied by the

mandatory issuances of work authorization, travel documents, a deeming of

qualification for REAL ID and automatic renewal of PIP. These are substantial policy

changes with lasting effects just like those we previously considered and outweigh

the budgetary impact and would subject to the proposal to a 313(b)(1)(D) point of order.

Where do the Democrats go from here? A realistic assessment by the negotiators vis-à-vis the parliamentarian would likely be the first step – is there a chance for Plan D? Would Ms. McDonough be more amenable to Plan C if it was not as extensive and only included a plan of parole with work authorization and travel documents and left out a deeming of qualifications for Real ID and automatic renewal of PIP (Parole in Place)? Would it be possible or even acceptable for Democrats to offer a plan for parole which was not equivalent to PIP to allow adjustment of status? Even now, DHS paroles individuals into the United States for many reasons and contests applications for adjustment of status on grounds that the parole status given did not entitle the holder to adjustment of status. If a realistic assessment is that the parliamentarian will likely not agree to any scenario which includes some form of relief to millions, then the Democrats seemingly have two choices – give up or override Ms. McDonough’s guidance on the ground that it is only advice. Giving up will exact a tremendous cost in terms of not only midterm election votes, and also place the reconciliation package in further jeopardy with some legislators signaling that they will not support the legislation without the immigration component. Overriding the parliamentarian on the other hand brings the twin risks that the Democrats will not have the votes as moderates balk and that success in doing so would set a precedent in which either party in power could simply go through the reconciliation process to achieve its goals disregarding the parliamentarian’s guidance.

If the rest of the reconciliation package can be worked out, and it comes to the choice of overriding the parliamentarian or not, we favor the override as the future of US immigration quite literally hangs in the balance and without some form of immigration relief now, it will be likely many years before the opportunity arises again. (The latest polls indicate that the Republicans are poised to make significant midterm election gains.) The Democrats can only do so if they can band together as one since loss of one member in the Senate and more than a few in the House would spell doom for the effort. If they can achieve unanimity, they would not be specifically confined to Plan C, the most limited plan, but should likely still consider it heavily as there will undoubtedly be legal challenges and the plan that hews closest to being less a substantial change in policy and having a large budgetary impact would be the most defensible.


About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2021), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


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