The continuing resolution signed into law that keeps the federal government open until December 3, 2021, included several immigration-related provisions, and other immigration provisions are under consideration. Legislative efforts have achieved mixed results in an overall atmosphere of gridlock. Below is a summary of selected highlights.

Continuing Resolution Signed Into Law

A continuing resolution was adopted by Congress and signed into law by President Biden on September 30, 2021. The legislation provides about $6.3 billion to aid Afghans at risk, including overseas aid for the support of Operation Allies Welcome (evacuation/resettlement), medical support and screening, and grants or contracts with qualified nonprofits to provide services. The legislation provides that Afghans arriving under humanitarian parole as part of the evacuation following the Taliban takeover and U.S. withdrawal from Afghanistan are to receive the same services as refugees. This includes health care, emergency housing, English language classes, job training, and case management.

An amendment from Sen. Tom Cotton (R-Ark.), defeated by one vote, would have cut off assistance as of March 31, 2023, and prevented recent Afghan refugees from obtaining driver’s licenses or identification cards without having to provide certain required types of documentation.

By December 3, 2021, to prevent another shutdown, Congress will need to either adopt another continuing resolution or pass an omnibus spending bill to fund federal agencies through fiscal year 2022.

Budget Reconciliation Process Continues

As part of the budget reconciliation process that will result in an omnibus spending bill, the Senate passed a $3.5 trillion budget resolution on August 11, 2021. The budget resolution, essentially an outline or blueprint for the spending bill that leaves details to be hammered out, hopes to include several immigration provisions. Among them could be instructions for lawful permanent status for qualified immigrants, and investments in border security measures and border management. Regarding the latter, ideas include allocating funds toward asylum claim facilities, more staffing for high-traffic border areas, backlog mitigation efforts like expansion of immigration courts, detention alternatives, and infrastructure needs like maintenance and repair of ports of entry.

Democrats say they hope to provide a path to permanent residence and eventual U.S. citizenship for up to 8 million immigrants, such as recipients of Deferred Action for Childhood Arrivals (DACA), popularly called “Dreamers”; temporary protected status beneficiaries, undocumented farmworkers, and other workers deemed essential. 

The Senate Parliamentarian, Elizabeth MacDonough, rejected the Democrats’ initial legalization provisions, concluding that these were “weighty policy change[s]” and thus were inappropriate to include in the reconciliation process. Following that rejection, the Democrats came back with Plan B, a provision in the reconciliation bill to change the date for the immigration registry from 1972 to 2010, which would qualify approximately 6.7 million people in the United States since that date to apply for green cards. The Senate Parliamentarian also rejected that effort, saying that the registry update was not directly related to the budget and thus cannot be included in the budget reconciliation process. Democrats could try a Plan C, could vote to overrule the Parliamentarian, or could pass a separate immigration-only bill, but all three prospects seem unlikely.

EB-5 Reauthorization Stalls

Thousands of EB-5 investors were disappointed that Congress did not reauthorize the EB-5 regional center program by the June 30, 2021, deadline. The program fuels various projects in the United States and related jobs through billions in foreign direct investment, and provides green cards for investors. Investors hope that the program may be reauthorized by December, but uncertainty remains due to various factors. Among those are the state of politics in the current Congress, making it difficult to pass any legislation. The uncertainty is the killer, as EB-5 regional center investors are stuck in limbo and unsure of what to expect. It’s also possible that the EB-5 regional center program would be reauthorized but with changes. 

Some EB-5 investors who were in the queue for green cards for years are finding their applications put on hold as well. They are pushing for a separate bill called the Foreign Investor Fairness Protection Act if Congress fails to reauthorize the regional center program.

Legislative Outlook: The Big Picture

Immigration reform advocates continue to look for various legislative “vehicles and options,” as President Biden’s Press Secretary, Jen Psaki, put it. However, Congress has been largely paralyzed on the immigration reform front for decades. The last comprehensive legal immigration reform bill that passed was the Immigration Act of 1990. Other attempts did not pass both houses of Congress or were not brought to the floor for a vote. In the meantime, the omnibus spending bill in December will be important to watch.

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