The House-passed Build Back Better Act includes major immigration law changes, supported by the Biden Administration and congressional Democrats. On December 16, 2021, the Senate Parliamentarian rejected the Democrats third attempt to include immigration proposals in the bill. The House-passed bill provides lawful permanent residency to essential workers (including health care workers). It also includes provisions that expedite green card applications, and provide protections for undocumented immigrants.

While the House-passed Build Back Better Act (BBBA) does include major immigration law changes, it was faced with increased scrutiny in the Senate. The Senate parliamentarian, Elizabeth MacDonough, has rejected the third and most recent immigration reform provisions in the bill that provides lawful permanent residency to essential workers, which includes health care workers. The bill also includes provisions that expedite green card applications, and provide protections for undocumented immigrants.

The BBBA had to survive a review by the parliamentarian, to determine if all provisions comply with the “Byrd rule,” which (very generally) prohibits non-spending and non-savings provisions from being included in a budget reconciliation package. The Senate parliamentarian has previously ruled against two previous immigration provisions in the bill that granted legal status to a new population of immigrants. House Democrats indicated the proposals in the House-passed bill should have satisfied the parliamentarian because they are modest tweaks of the law and they are not granting legal status to a new population of immigrants or seeking to raise the ceiling for green cards, and impacted spending.

The major immigration law changes in the House-passed Build Back Better Act included the following:

1. Expedite a pathway to green cards, through a visa recapture program

   The U.S. imposes caps by country on the number of green cards issued each year, which means applicants from countries where many people apply to work in the United States end up waiting years for approval. The House-passed BBBA amends the statute to recapture family-sponsored and employment-based visas already approved by Congress that went unused during fiscal years 1992 through 2021.

2. Provide temporary protections and a work permit to undocumented immigrants

   The BBBA could provide temporary protections and a work permit to as many as 7 million undocumented immigrants. Individuals who have lived and worked in the United States for more than 11 years, and they would be eligible to submit an application for adjustment to lawful permanent status. They would also have to agree to pay the required supplemental fees (and complete a background check with a medical examination). The following individuals would quality for permanent residency: Essential workers (including health care, farmworkers, public works, etc.); Dreamers, Temporary Protected Status holders; and Deferred Enforcement Departure recipients.

3. Revise Adjustment of Status Applications

   This provision revises the filing requirements for “adjustment of status” applications in both the family-based and employment-based categories. The Immigration and Nationality Act (INA) would permit family-based and employment-based applicants (and the spouse and children of the applicants) to apply immediately for adjustment of status (for supplemental fee), even though a visa number may not be available.

In addition, a waiver would be created from the annual and per-county family-based and employment-based immigrant visa numerical limitations for individuals. The provisions allow certain individuals who were selected to apply for visas in fiscal years 2017-2021, but who were refused a visa or denied admission to the U.S. because of specific executive orders, or who were unable to complete the visa or admissions process because of COVID-19 related restrictions.

4. Allocate funds to USCIS to alleviate green cards and TPS backlogs

Allocate $2.8 billion to the U.S. Customs and Immigration Service (USCIS), to help reduce the green cards application backlog and the temporary work protections work permits processing backlogs.

LeadingAge will continue to advocate for the House-passed Build Back Better Act immigration changes because the immigrant population is an important component of the LTSS workforce. It’s also one part of the solution to the workforce crisis in aging services, and we want to make it easier for qualified workers who want to come to the U.S. to work in long-term care to do so. We will also continue to advocate for immigration reform as part of a comprehensive approach to addressing the aging services workforce crisis.