November 2021
The House passed the Build Back Better bill in November, which includes measures that would grant work permits to more than 6 million undocumented people. The Senate will vote on the bill next, but first we must secure the Parliamentarian’s approval on the immigration provisions. Meanwhile, record numbers of Venezuelan migrants arrived at the border this month, offering a stark reminder that our migration policies must be designed for and with the full hemisphere. President Biden took an important step in that direction by hosting the first North American Leaders Summit since 2016. Lastly, in compliance with a court order, the Biden administration is expected to restart the Remain in Mexico program in the coming weeks; they will do so while implementing additional migrant safeguards and continuing to work toward a permanent end to the program.
Build Back Better Reconciliation Update
The House passed the Build Back Better bill on November 19, including immigration measures that would transform the lives of millions. With the legislation now moving to the Senate, we are facing two major challenges to ensure that the ‘parole’ provisions (which would grant protection from deportation and work permits to some 6.5 million people, according to the Congressional Budget Office analysis) survive the scrutiny of the Senate Parliamentarian, who decides what qualifies for reconciliation.
During the week of Thanksgiving, the Parliamentarian began a ‘scrub’ of the full bill, meaning she is combing through the bill, title by title, to ensure that every component of the legislation meets the criteria for inclusion. For the immigration provisions, she will be considering two core challenges to the legislation raised by Republicans:
- Merely incidental budgetary impact: The Parliamentarian will consider, once again, whether the Senate Democrats’ proposal to provide relief to undocumented immigrants has a budgetary impact that is not “merely incidental” to the policy. In her view, our previous two proposals — both of which offered a path to citizenship — failed that test. In those instances, she concluded that the policy implications of providing a path to green cards and ultimately citizenship significantly outweighed the fiscal impacts. Given her emphasis on the significance of permanent residence, we crafted the current policy to provide many of the same benefits (the ability to work and travel legally) but without creating a new path to citizenship.
- This compromise is painful given our unwavering belief that all 11 million aspiring Americans should be provided the opportunity to earn the privilege of citizenship. That end goal will remain our priority, but we don’t want to miss the opportunity to realize life-changing protections for millions of families. And this policy alternative offers the best chance of accomplishing that end.
- Out-year costs: The Congressional Budget Office (CBO) estimated that parole will generate hundreds of billions of dollars in ‘out-year costs’: costs estimated to be incurred as a result of the legislation 11–20 years after implementation. Those costs must be balanced by revenues generated within the Senate Judiciary Committee, which has jurisdiction over immigration. Immigration experts agree that the CBO score is based on several faulty assumptions and is far too high. We’ve asked the Department of Homeland Security to push back on that analysis and urge the CBO to reconsider their estimate. If this happens in a timely manner and the CBO issues a new, lower score, the costs may be largely covered by fees within the immigration program.
- If the CBO does not revise their estimate, there would need to be modifications to the legislation that diminish those out year costs OR there would need to be a balancing of the costs with revenues from another committee, which requires a formal bicameral conference committee. Senate leadership worries that “going to conference” would delay and potentially threaten the ultimate passage of the bill. Still, as challenging as this out-year cost issue is, there are workarounds (fees, conference, modifications to benefits eligibility) and where there’s a will, there’s a way.
This week, Democratic and Republican staff presented arguments to the Parliamentarian on both issues. A preliminary ruling could come at any time. We expect her to raise concerns over certain components of the policy, which may lead to shallow reporting prematurely declaring the immigration measures dead. Ignore the simplistic headlines — this will continue to be an iterative process and Senate leadership is determined to get to yes.
The Imperative of a Regional Approach to Migration
DHS intercepted more than 13,000 Venezuelan migrants at the U.S.-Mexico border this month, the highest one-month total ever. A large portion of those arriving at the border left Venezuela years ago and are migrating from elsewhere. Along with the recent surge of Haitian migrants at the southern border — most of whom arrived after having previously settled in South America — this new influx of migrants highlights that we need solutions that go beyond Mexico and the Northern Triangle. There is presently neither the infrastructure nor collective vision within the hemisphere to manage the flow of displaced people in the Americas in a humane and constructive manner: we are in desperate need of a comprehensive, regional approach to migration.
The Biden administration took an important first step in that direction this month when it hosted the Prime Minister of Canada and the President of Mexico for the first North American Leaders’ Summit since 2016; among the central points of discussion was the three governments’ collaboration on a new regional vision for migration. We hope these discussions lead to a Migration Accord for the Americas, which would seek to mitigate, manage, and order migration throughout the hemisphere. The conversation will be continued at the Summit of the Americas this summer, when all the nations in the hemisphere will convene.
Pending Restart of the Remain in Mexico Program
As described in previous updates, DHS sought to formally terminate the Trump Administration’s Remain in Mexico policy because of the gross human rights violations that resulted. A federal court, however, ordered the administration to restart the program. After extensive delays and a contempt motion for failure to comply with the order, DHS is planning to reinstate the program on or around December 6, even while it continues to argue in court that the program must be abandoned.
The policy cannot, however, be restarted without a green light from the Mexican government, which has a list of conditions they have required the U.S. to meet. Among those conditions is the acceleration of development programs in southern Mexico and Central America and a commitment to providing migrants in the program with access to medical attention and COVID vaccines, shelter, and legal counsel. The administration is fine-tuning their efforts to meet these demands: for example, they just announced Sembrando Oportunidades, a collaborative development program led by the U.S. and Mexico to address the root causes of migration in northern Central America, and they have publicly confirmed that all adults enrolled in the program will be offered the vaccine.
In addition, there will be several groups who are exempted from the program altogether, including: unaccompanied children; noncitizens with advance parole, criminal history, or who are of law enforcement interest to the U.S. or Mexican governments; and noncitizens with known physical or mental health issues, who are of an advanced age, and those at increased risk of harm due to their sexual orientation or gender identity.
We expect to see the program rolled out with the agreed upon modifications soon. We also anticipate a very legitimate backlash from immigrant rights’ advocates to accompany that announcement. Despite the extremely frustrating dynamic created by this outrageous court ruling, the administration is committed to making this iteration of Remain in Mexico both humane and — more importantly — temporary.
The final weeks of 2021 will be historic for the immigrant rights’ movement; we are in it to win it and will do everything in our power to help push long-overdue protections for the immigrant community across the finish line.
In solidarity,
Marshall Fitz
Managing Director of Immigration, Emerson Collective
