In a dispiriting turn, the Senate parliamentarian decided last night that the Democrats’ legalization proposal for undocumented immigrants cannot be included in reconciliation because it does not conform to the Byrd rule. As disappointing as this decision is, lawmakers should remember that there’s more to immigration reform than legalization.

Democrats have vowed to pursue alternative approaches to immigration reform in reconciliation. Apparently these “alternatives” include reviving the immigration registry and a piece of immigration arcana called 245(i). Both of these proposals for Plan B would provide for legalization but with different legal mechanisms than the plan the parliamentarian took off the table. But the parliamentarian’s decision doesn’t seem to rest on the particular legal mechanisms at play — she seems likely to rule against legalization by any means. 

If that does come to pass, it will be another disheartening blow. However, it won’t mean that all immigration reform is necessarily out of reach. The House version of the reconciliation bill contains two significant reforms to legal immigration that would be a victory in their own right: recapture of unused visas and cap exemptions. These are more likely (though still far from certain) to pass parliamentary muster.  

Legalization is dead, long live immigration reform

Unfortunately, the parliamentarian’s ruling seems likely to apply just as well to a legalization program with similar effects but merely a different implementation. She writes:

The current proposal would waive the relevant sections of the INA, and create a new class of alien who is eligible for adjustment of status….LPR status comes with a wide range of benefits far beyond the social safety net programs…that generate the CBO score. Broadly speaking, as most of the beneficiaries of this policy change are not in status, there will be other, life-changing federal, state and societal benefits to having LPR status….Many undocumented persons live and work in the shadows of our society out of fear of deportation….LPR status would give these persons freedom to work, freedom to travel, freedom to live openly in our society in any state in the nation, and to reunite with their families and it would make them eligible, in time, to apply for citizenship – things for which there is no federal fiscal equivalent.

This would still apply to people who would be covered by a legalization program implemented by updating the dates for the registry or 245(i). Granted, alternative legalization schemes would arguably avoid creating “a new class of alien.” However, in all cases, the proposals would “clear the way to LPR status‚” as the parliamentarian puts it. 

That’s bad news for the undocumented. But the House version also proposes changes affecting legal immigration. These reforms do not “clear the way to LPR status” for anybody without a way to get there under existing law — instead, they only affect the timeline of adjustment (and the revenue collected through fees) without changing eligibility criteria. As the parliamentarian’s decision states, provisions such as recapture “are distinguishable as they appl[y] to persons who [are] already admissible and not barred under law from applying for status, which is not the case [with legalization].” 

Indeed, this distinction is at the core of the parliamentarian’s argument that permitting legalization would open the door to rescinding legal status. The crux of the argument is that both granting legal status and stripping status are analogous since both require policy changes about who is admissible and eligible for status. Neither of the House bill’s legal immigration changes affect criteria for admissibility or eligibility for legal status and hence should create no precedent for rescinding legal status. 

There is, it must be said, still a chance that the parliamentarian will acquiesce to legalization by different means. It’s certainly worth trying; lives, families, and livelihoods are on the line and all opportunities should be explored. But lawmakers must not single-mindedly pursue legalization as a must-have and put the entire immigration reform effort at risk. If the choice comes down to jettisoning legalization or leaving immigration out of the bill altogether, legal immigrants should not be forced to go down with the ship.

Immigration reform’s next best hope: The House provisions 

As of last Monday night, the House bill includes two important provisions missing from the Senate version: recapturing unused visas and cap exemptions for certain immigrants waiting in line for a green card who are willing to pay a fee. 

The provisions related to established immigrant visas are substantial. They promise relief to literally millions of people who are trying to immigrate legally to the United States but are forced to wait years — often even decades — before they can receive a green card. The growing waiting times put careers on hold, keep people away from their families, and spur others to give up on their American dream entirely. These are people who have already had their applications approved but are merely waiting for a slot to open up.

These increasing waiting times not only place severe hardships on the people waiting in line, but act as a drag on growth. People waiting abroad can’t contribute their ideas and talents to the economy. Even people waiting in the United States are restricted while they wait in line and can’t contribute fully. The two reform provisions would yield sizable economic benefits: recapture alone should contribute more than $1 trillion to U.S. GDP over 10 years. The cap exemptions are likely to contribute trillions more.* 

In short, passing the recapture and cap exemption provisions alone would represent significant and meaningful improvements to our immigration system. Note well, this is nevertheless far from the kind of “tremendous and enduring policy change” the parliamentarian has ruled inappropriate for reconciliation. That is because these provisions don’t expand benefits to anybody not already entitled to them. Rather, they merely allow people already entitled to immigration benefits to receive them sooner. By affecting only the timing of benefits rather than changing any fundamentals of immigration policy (e.g., by creating new classes of aliens, expanding or restricting eligibility criteria, changing the benefits due to any class of aliens, etc.), these provisions may significantly improve the immigration system while staying within the bounds of reconciliation. 

Assuming that Democrats decide to abide by the parliamentarian’s decisions, the prospects for including legalization in reconciliation look quite dim. But there may still be an opportunity for meaningful immigration reform.

*We can make a very rough estimate of the benefits from passing the cap exemptions. There are currently more than 1 million (and rising) people waiting in the employment-based line and another 4 million (and rising) waiting in the family-based line. Assuming that both lines were reduced by the number of recaptured green cards, that would leave about 400,000 in the EB line and about 3.4 million in the family line. If, say, only half opted to pay the fee and no new applicants ever opted to pay (an outlandishly conservative assumption), nearly 2 million additional green cards would be issued. Using the same methodology described in previous estimates, this conservative model has the cap exemptions contributing an additional $2.8 trillion to GDP over 10 years. Whatever the true value, suffice to say that the benefit of the cap exemptions are likely many times the benefit of recapture alone.

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