As published in the Immigration Daily on December 20, 2021

Senator Joe Manchin (D-WV) said yesterday on “Fox News Sunday” that he will not support The Build Back Better Act, the chief legislative thrust of the Democrats that requires all 50 Democratic senators to be on board to pass through the reconciliation process with only Democratic votes. This may signal the end or proved to be a temporary roadblock with Democrats having to further negotiate to pare down the bill with one of their own. If the legislation somehow obtains the 50 votes, the important immigration component will also require further work.

The Senate parliamentarian, Elizabeth McDonough, delivered another blow to the Democrats’ plan to add immigration relief to the Reconciliation Bill on December 16, 2021, by rejecting Plan C, the main component of which would consist of parole of up to 10 years (5 years per application) with accompanying employment and travel authorization for those who enter the US before 2011. Plan A had included a path to citizenship for essential workers, DACA and TPS recipients, and Plan B updated the Registry date under which persons in the US by a certain date could adjust status from its present eligibility date of January 1, 1972 to January 1, 2010. The parliamentarian’s guidance was as follows:

The proposed parole policy is not much different in its effect than the previous proposals we have considered. The proposal, which would increase the deficit by $131 billion over 10 years, creates a class of eligible people (those who have been in the country for 10 years or more) who will qualify for a grant of parole in place status. This new class would make eligible for parole 6.5 million people – nearly the same number of people as the previous two plans. CBO estimates that 3 million people would adjust to LPR status – 2 million of whom would be otherwise ineligible under -current law. In order to effectuate the policy, the parole proposal changes the contours of the current parole in place program, making it a mandatory award of status for qualifying applicants rather than the current discretionary use of the Secretary’s authority and assessment, which the USCIS website states that the Secretary grants “only sparingly.” The grant of parole will be accompanied by the mandatory issuances of work authorization, travel documents, a deeming of qualification for REAL ID and automatic renewal of PIP. These are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact and would subject to the proposal to a 313(b)(1)(D) point of order.

Where do the Democrats go from here? A realistic assessment by the negotiators vis-à-vis the parliamentarian would likely be the first step – is there a chance for Plan D? Would Ms. McDonough be more amenable to Plan C if it was not as extensive and only included a plan of parole with work authorization and travel documents and left out a deeming of qualifications for Real ID and automatic renewal of PIP (Parole in Place)? Would it be possible or even acceptable for Democrats to offer a plan for parole which was not equivalent to PIP to allow adjustment of status? Even now, DHS paroles individuals into the United States for many reasons and contests applications for adjustment of status on grounds that the parole status given did not entitle the holder to adjustment of status. If a realistic assessment is that the parliamentarian will likely not agree to any scenario which includes some form of relief to millions, then the Democrats seemingly have two choices – give up or override Ms. McDonough’s guidance on the ground that it is only advice. Giving up will exact a tremendous cost in terms of not only midterm election votes, and also place the reconciliation package in further jeopardy with some legislators signaling that they will not support the legislation without the immigration component. Overriding the parliamentarian on the other hand brings the twin risks that the Democrats will not have the votes as moderates balk and that success in doing so would set a precedent in which either party in power could simply go through the reconciliation process to achieve its goals disregarding the parliamentarian’s guidance.

If the rest of the reconciliation package can be worked out, and it comes to the choice of overriding the parliamentarian or not, we favor the override as the future of US immigration quite literally hangs in the balance and without some form of immigration relief now, it will be likely many years before the opportunity arises again. (The latest polls indicate that the Republicans are poised to make significant midterm election gains.) The Democrats can only do so if they can band together as one since loss of one member in the Senate and more than a few in the House would spell doom for the effort. If they can achieve unanimity, they would not be specifically confined to Plan C, the most limited plan, but should likely still consider it heavily as there will undoubtedly be legal challenges and the plan that hews closest to being less a substantial change in policy and having a large budgetary impact would be the most defensible.

Q&A’s published on the World Journal Weekly on December 5, 2021 1. Can I change from F-1 student to B-2 tourist and how long would it take to process? 2. While pending parents I-130 in US.  Can they travel out of US?

1. Can I change from F-1 student to B-2 tourist and how long would it take to process?

Can I change from F1 student to B2 tourist? If approved can I travel and come back with tourist visa? Would I be receiving a copy in the mail? How long would it take to process?

Mr. Lee answers,
It may be possible to change from F-1 student to B-2 tourist, but such is mostly impractical at this time to a number of situations. The USCIS service centers are generally backed up on this type of adjudication and could well take over nine months and even longer to make the adjudication. If you file, you will receive a receipt, but it may take a long time before you receive an actual decision. If you decide to file and are still in the US by the time that your requested time is close to expiration, you should leave or take some other action to preserve your nonimmigrant status. Please note that a change of status is not a visa, it is only notated on a paper. If you travel outside the country, you would need to apply for a tourist visa in most cases to return as a tourist. 

2. While pending parents I-130 in US.  Can they travel out of US?

I have filed parents I-130 after 3 months of their arrival in US. I didn’t file I-485 yet. Can they travel out of US and come back on a visitor visa while their I-130 is still pending in US? Do they need to file for travel document I-131? Can they apply for I-485 back home?

Mr. Lee answers:
The difficulty here is that your parents’ visiting visas require nonimmigrant intent, and they could have a problem reentering the country if they are questioned by a CBP officer on that, Probably the best solution is for your parents to file I-485 applications and obtain I-131 advance parole documents to travel in and out of the US during the time of processing. I note that advance parole applications are taking time for USCIS to process, and so your parents may not be able to leave for possibly 5-10 months after filing. I-485’s are only filed in the United States. If your parents wish to process their papers overseas, they would do it on form DS-260 immigrant visa applications.