Build Back Better: What It Does and Doesn’t Do for Immigrants

Build Back Better: What It Does and Doesn’t Do for Immigrants Photo Source: Adobe Stock Image

With the recent passage of the $1 trillion bipartisan infrastructure bill, House and Senate Democrats are ready to move on to the next flagship item on President Biden’s agenda: the Build Back Better Plan. Build Back Better is a piece of legislation that was originally proposed by President Biden prior to his inauguration and has since worked its way through the lower house of Congress, facing cuts, alterations, and modifications along the way. Progressives are eager to see the Plan passed in its most aggressive form, while moderates in the party are wary of passing a bill that would get rejected by the center-left Democratic members of the Senate (in addition to the almost-certain universal rejection by the Republican party).

In its current form, the Build Back Better package not only provides tax cuts, child care assistance, and elderly care for American citizens; it also aims to help undocumented immigrants who live and work in the United States. The package reflects the President’s agenda to undo much of the harm caused by the Trump Administration’s draconian approach to immigration by taking a more humane, as well as a more efficient, approach to immigration, border processing, asylum, and immigration enforcement.

Build Back Better Offers Expanded Work Authorization and Delayed Deportation to Undocumented Immigrants

In its current iteration, the $1.75 trillion social safety net and climate spending package would dole out up to ten years of work authorization for undocumented immigrants living in the United States. The package utilizes a process known as “parole” to waive immigration requirements for people who have been living in the United States since before 2011. Applicants who are approved for the five-year waiver could then apply for a five-year extension, meaning that they would not be subject to deportation until at least 2031.

The goal of the immigration reform provision is to provide deportation relief for undocumented immigrants who have been living and working in the United States for decades. The specifics of the immigration part of the plan were crafted in response to the anticipated Republican filibuster of all legislative immigration reform efforts. To get around the filibuster, the plan must rely on specific areas of Congressional authority, and a Congressional official determined that earlier iterations of the plan did not meet the appropriate rules.

Build Back Better is Not a Pathway to Citizenship

It’s important to note that the most recent Build Back Better package recently released by the House does not provide a pathway to citizenship for the roughly 11 million undocumented immigrants living and working in the United States. A previous provision in the package, since removed, would have created a mechanism for immigrants who have been in the country since before 2010 to obtain green cards, which in turn would have created a pathway to citizenship for lawful permanent residents so inclined.

If the law is passed and allows travel outside the U.S., it could create a pathway for an alien, if married to a citizen, to become a permanent resident.
— Scott Messinger, National Immigration Attorney

Even without a pathway to permanent residence or U.S. citizenship, immigration attorney Scott Messinger sees this parole provision as a great option for undocumented immigrants, allowing them to get work permits, permission to travel, and freedom from deportation during the authorized period. Messinger also notes how the parole option could help families of undocumented immigrants living abroad. “If the law is passed and allows travel outside the U.S., it could create a pathway for an alien, if married to a citizen, to become a permanent resident,” Messinger says. Messinger adds that it will be interesting to see what the requirements will be to obtain such permission to travel. For example, “DACA recipients,” he says, “are not permitted to travel unless they can establish a “humanitarian, education, or employment” purpose for the travel.”

Proponents of more expansive immigration reform have balked at the limited ambition in the House proposal. Critics claim the House Democrats are negotiating against themselves in anticipation of what might get rejected in the Senate. Immigration rights advocates argue that a pathway to permanent residency and citizenship is necessary; otherwise, undocumented immigrants are left with the same threat of deportation, just kicked down the line. Even Democratic leaders in the Senate have encouraged the House to go further. At this juncture, more aggressive reform efforts in this particular bill seem unlikely.

Christopher Hazlehurst
Christopher Hazlehurst
Christopher Hazlehurst is a graduate of Columbia Law School, where he served as Editor of the Columbia Law Review. In his law practice, he has handled a wide range of complex commercial litigation and white-collar criminal and regulatory investigations, while remaining deeply engaged in public interest matters across the country. He is currently licensed to practice law in California.
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