Immigration Provisions in the Build Back Better Bill

Senate Democrats continue to propose immigration reform as part of the budget reconciliation process. The current draft of the Build Back Better bill contains provisions that could help millions of undocumented people, including some intercountry adoptees who are not lawfully present in the United States today. But it’s fairly limited.

To date, Senate Democrats have struck out in efforts to secure a path to citizenship for millions of undocumented immigrants through the Congressional reconciliation process. Immigration Plans A and B have been rejected by the Senate Parliamentarian as out of order for a reconciliation bill. A current “Plan C,” howeer, would create a process for undocumented people to secure lawful presence in the country, a process known as “parole.” This plan has moved past the first hurdle of the Parliamentarian, and it’s now in what is called the “Byrd bath,” where Senators can seek to strike “extraneous” matters from the bill. So, it’s still very much up in the air.

Update: On December 16, 2021, the Senate Parliamentarian rejected inclusion of “Plan C” immigration provisions in the BBB Act. Unless the Senate overrides that decision, which appears unlikely, the immigration provisions discussed here will not move forward.

Putting aside the process to get this moving forward, here’s how Plan C would work, how much it may cost, and how it could benefit a small number of intercountry adoptees without U.S. citizenship.

First, this is only a proposal, and it has a lot of hurdles to get over, if it can. So, take that into consideration and don’t change your plans or your life just yet.

Securing Lawful Presence in the U.S. through “Parole”

In the U.S. immigration context parole is a grant of temporary legal status to be present in the United States. There are various parole programs in US immigration law— some parole programs apply to people currently outside of the U.S. (allowing them to come to the US) and some apply to people who are already present and living in the country. The provision in the Build Back Better (BBB) bill applies only to individuals who are already present in the United States and have been residing in the U.S. continuously since January 1, 2011. It does not matter if the person entered without inspection (and is thus not lawfully present) or was already paroled or admitted to the U.S. As long as they entered the country prior to January 1, 2011, and continuously resided in the country, they are eligible under the BBB Bill to apply for parole.

Most intercountry adoptees are admitted to the U.S. as lawful permanent residents, so parole is not necessary—they are already legally residing in the country, though they may still lack U.S. citizenship. But a number of intercountry adoptees are not lawfully present, despite being adopted by U.S. citizen parents as children. These include intercountry adoptees who entered the country on non-immigrant tourist or visitor visas instead of approved immigrant visas. Once a tourist visa expires—typically within six months—the visa holder becomes a “visa overstay” and is no longer considered lawfully present in the U.S. Many intercountry adoptees are in this category. In addition, other intercountry adoptees may have been smuggled or brought into the country by adoptive parents who did not follow U.S. immigration laws, particularly for intercountry adoption. And still others may have been “waved through” at the U.S. border but there is no proof of such lawful entry to the country.

I have represented clients in each of these categories, and the BBB Bill could help them at least secure lawful presence to remain here, and hopefully to get on a path for U.S. citizenship.

There are, of course, exceptions that make a person ineligible to apply for parole under the BBB Bill. These include whether the person has been convicted of one or more of a long list of crimes, was involved in terrorist related activities, facilitated human smuggling into the country, or has engaged in polygamy or international child abduction.

Importantly, a person also cannot have voted unlawfully, which is a frequent snafu for many intercountry adoptees who, obviously believing they were citizens, registered and voted in a federal or state election. Luckily, there is an exemption for people who have voted unlawfully, so long as their natural or adoptive parents were U.S. citizens at the time and the adoptee “reasonably believed” they too were U.S. citizens. I’ve often overcome the voting issue in representing intercountry adoptees seeking citizenship.

Other Provisions: Adjusting Status to a Legal Permanent Resident

One of the more complicated provisions in the BBB Bill relates to the “recapture” of unused green cards. Putting those complications aside, the BBB Bill does have a provision that allows some people immediately to “adjust status” to that of a legal permanent resident once they are approved for parole. For intercountry adoptee purposes, this will only generally benefit two sets of adoptees who are not currently lawfully present in the US: 1) those who are the spouses of US citizens; and 2) those who are the adult children of U.S. citizens. For them, parole will cure their unlawful presence in the United States and, combined with the added green card provisions, will allow them to apply to adjust status to that of a legal permanent resident, though there are other limitations that may complicate this route, particularly for adult adoptees who are not married to US citizens. I know a few intercountry adoptees who are in this group and could benefit from the provisions (though total fees to adjust status is enormous—see below).

Increased “Supplemental Fees” to Pay for It

The other downside to the expansion of parole in the BBB Bill is its cost to the people seeking parole as well as significantly increased costs to many lawful permanent residents who must renew green cards. Many intercountry adoptees without U.S. citizenship are currently legal permanent residents (green card holders), and the fee for green card renewals under the BBB Bill will more than double, from $455 to $955 (plus a biometrics fee of $85). And if parole is granted, the next typical step is to secure work authorization, which will also more than double in cost from $410 to $910. Significant “supplemental fees” (which are being used to pay for the BBB Bill) will also be required to adjust status from a non-immigrant to a legal permanent resident, with some fees increasing by $2,500. In just one example of an adult intercountry adoptee who is eligible for parole and a green card through a US citizen parent, the total fees to do so would be at least $3,700.00.

So, certainly expanded parole provides an avenue for people unlawfully present in the U.S. to be legally here. But obviously, it only applies to a small number of intercountry adoptees (but a much greater number generally, estimated to be around 6 to 7 million people). And, for our purposes as adoptee rights advocates, it has even more limited and significantly costly provisions to get on a solid path to US citizenship. Obviously the BBB Bill is a stopgap measure intended to move forward in a reconciliation bill process. A more substantive and powerful tool is already at Congressional disposal—passage of the Adoptee Citizenship Act of 2021. I’m still blue in face but holding my breath for that.