The Build Back Better Act

What is the Build Back Better Act?

The Build Back Better Act was introduced in the House of Representatives on September 27th, 2021. The Act was modeled off of President Joe Biden’s Build Back Better Plan, a legislative framework that Biden proposed ahead of his inauguration. The plan covered a wide range of issues including funding for COVID-19 relief, social services, welfare, and infrastructure. The plan also addressed issues pertaining to climate change and immigration. The Act was included in a $3.5 trillion reconciliation package, alongside the Infrastructure Investment and Jobs Act which was later voted on and passed in the Senate separate from the Build Back Better Act.

Legislative History

After intense negotiations in the House of Representatives, the Act passed 220–213 on November 19, 2021. However, the Act was passed after the original $3.5 trillion was negotiated down to $2.2 trillion. The Act then made its way to the Senate for revisions. Just as in the House, several of the original provisions in the Act were gutted. For example, the Senate parliamentarian rejected Democrats’ attempts to include immigration in this “economic” bill three times between November and December of 2021. After weeks of negotiations and a glimmer of hope that the Act might be passed before the New Year, Democratic Senator Joe Manchin from West Virginia publicly pulled his support from the bill for not matching his envisioned cost of about $1.75 trillion. Manchin’s refusal to support the Act effectively killed the bill as it needed all 50 Democratic senators to pass via reconciliation.

Breakdown of the Immigration Provisions in the House Bill

The House Judiciary Committee included the following immigration provisions in the original bill text that was to be included in the budget reconciliation package:

• Lawful Permanent Residence for Certain Entrants:
  • Documented and undocumented individuals may apply for adjustment of status.
  • Contingent upon a $1500 fee, a background check, and a medical examination.
  • Eligible groups          
    • Dreamers
      • Continuously physically present since 1/1/21
    • Essential Workers
      • Continuously physically present since 1/1/21
      • Consistent record of earned income in the U.S. in an essential occupation as defined by the DHS CISA guidance between 1/31/2020 – 8/24/21
    • Holders of Temporary Protected Status (TPS)
      • Continuously physically present for 3 or more years
      • Last habitually resided in a state that was designated for TPS on 1/1/17
    • Recipients of Deferred Enforcement Departure (DED)
      • Continuously physically present for 3 or more years
  • Several inadmissibility grounds apply.
  • Effective Date: 180 days after enactment or May 1, 2022, whichever is earlier.
• Recapture of Unused Immigrant Visa Numbers:
  • Recaptures unused Employment Based (EB) and Family Based (FB) visas since FY 1992.
  • Preserves Diversity Visas (DV) for individuals (and their spouse and children) that were not issued or used for admission since FY 2017 due to the Muslim/African bans and COVID processing delays/bans.
  • Revises INA to ensure that visas do not go lost in the future.
  • Avoids double counting of visas.
• Adjustment of Status:
  • Allows for filing of an AOS application for most FB and EB applicants upon the approval of the immigrant visa (IV) petition
    • Does not require a visa number to be immediately available
    • Fee of $1,500 for principal applicant, $250 for each derivative beneficiary
  • Thru September 30, 2031, creates an exemption from the annual and per-country FB and EB immigrant visa numerical limitations for individuals who have filed AOS applications, and their priority date is at least 2 years before the date of applying for a waiver of limitations, for a supplemental fee
  • Effective Date: Takes effect 180 days after enactment or May 1, 2022, whichever is earlier.
• Additional Supplemental Fees:
  • Establishes additional supplemental fees for immigrant visa petitions (in addition to filing fees, early adjustment fees, and waiver of numerical limitation fees)
    • $100 for FB IV petitions for unmarried sons and daughters of USC, married sons and daughters of USCs, and brothers and sisters of USC and immediate relatives.
    • $100 for FB IV petition for spouses and unmarried children of LPRS.
    • $800 for EB 1-3 petitions. o $15,000 for EB-5 petitions.
• U.S. Citizenship and Immigration Services
  • Appropriates an additional $2.8 billion to USCIS to efficiently adjudicate INA 245(n) applications.

Conclusion

While the fate of the Build Back Better Act appears to be rather grim, there is still hope that some of these immigration provisions can be passed in smaller components or achieved through other procedural mechanisms in the House and Senate. Some Senators are calling to disregard the rulings of the Senate parliamentarian, while others continue to pick up the broken pieces and brainstorm ways in which they can achieve more narrow wins on immigration reform. President Biden, too, continues to vocalize his support for these aforementioned immigration measures and calls for continued negotiation. It is likely that these provisions will serve as a framework for a future immigration reform bill—perhaps a revamped, Build Back Better 2.0.

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