By:  Richard Hanus, Esq.

Published December 19, 2021

For the past 20 years, more than a few proposals to help millions of undocumented immigrants come out of the shadows have been presented for Congress’ consideration only to find their way to the waste heap.  Each time a big legalization idea is up for serious discussion, I will generally write about it, only to be forced to pen a follow up account confirming the proposal’s demise, with either of the political parties playing the role of killer.

The last far reaching legalization type avenue actually enacted by Congress was Section 245(i) of the Immigration and Nationality Act, and the doors to that path closed for most on April 30, 2001.  Since then the only other notable far reaching program that came to be was DACA, or Deferred Action for Childhood Arrivals.  DACA though was not an act of Congress, but a measure launched by the Executive Order of President Obama and continuing now with President Biden.  DACA’s impact is limited however, in terms of who got to benefit (those arriving by June 15, 2012 and before turning 16) and the term of the benefit (2 year, extendable employment authorization documents).

This past week saw a new immigration big idea reach a dead end, and again, I present a story of another failed effort to formally and legally absorb 12 million folks who have been otherwise law abiding but living in the U.S. for years, even decades, in violation of our immigration laws.  The Build Better Back bill covers primarily social spending and budgetary issues.  But also inserted into the large piece of legislation were immigration measures allowing a temporary “parole” that would have allowed millions of qualified undocumented folks access to employment authorization for a period of up to ten years.  Although stopping short of a path to citizenship, the provisions were significant – like with DACA – where millions of undocumented meeting specified security requirements and paying an application fee would get to be authorized to live and work in the U.S. and without fear of being deported.

Six Democratic senators, Chuck Schumer, D-N.Y., Dick Durbin, D-Ill., Bob Menendez, D-N.J., Catherine Cortez Masto, D-Nev., Ben Ray Luján, D-N.M., and Alex Padilla, D-Calif., went on record opposing the action of the Senate Parliamentarian, who was the ultimate road block to further Senate consideration: “Throughout the entire reconciliation process, we have worked to ensure that immigration reform was not treated as an afterthought,” they said. “The majority of Americans support our efforts to provide legal status for millions of undocumented immigrants in the United States because it would raise wages, create good-paying jobs, enrich our economy, and improve the lives of all Americans.”

The Senate parliamentarian, an unelected official providing advisory interpretations on Senate rules, had in recent days also rejected 2 more potent immigration proposals, including one allowing an avenue toward eventual citizenship status.   The Parliamentarian reasoned that the inclusion of the immigration language went significantly beyond the bill’s budgetary and social spending purpose.

Democrat leadership in Washington have confirmed that their efforts at enacting a version of immigration reform are not complete and that early 2022 will see new negotiations take place or even legal maneuvers to override the Senate Parliamentarian.  In the meantime, my decades of experience working in the immigration law trenches tell me that more of the status quo and legislative stagnation on this issue can be expected.  I also remain hopeful I am wrong.

PUBLISHED December 19, 2021– “IMMIGRATION LAW FORUM” Copyright © 2021, By Law Offices of Richard Hanus, Chicago, Illinois