United States: House Passes Build Back Better Act with Immigration Relief and Fee Provisions

The bill would create a temporary parole program for foreign nationals who entered the United States before January 1, 2011, have resided continuously in this country since that time, and demonstrate that they are not inadmissible on the basis of a crime. Applicants would be required to submit an application, pay a fee, and complete security and background checks.

If approved, foreign nationals would receive temporary parole for an initial period of up to five years, employment authorization and travel permission, and would be eligible for a REAL ID-compliant driver’s license. Extensions of parole would be permitted from the expiration of the initial period through September 30, 2031. The Department of Homeland Security would be prohibited from sharing information in parole applications with U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement for purposes of immigration enforcement.

The temporary parole program would take effect 180 days after enactment of the bill or May 1, 2022, whichever is earlier.

The bill would recapture and make available family-based and employment-based immigrant visas that were unused in Fiscal Years 1992 through 2021. It would also prevent future loss of unused immigrant visas.

The bill would also allow foreign nationals selected in the Diversity Immigrant Visa Lottery between Fiscal Years 2017 to 2021 to reapply if they were refused a visa or denied admission because of presidential executive orders or were unable to complete their permanent residence cases because of COVID-19-related restrictions.

The bill would permit a foreign national to submit an application for adjustment of status before they reach their place in line under the current rules on payment of a $1,500 fee (plus a $250 fee for each derivative). Currently, a foreign national can submit an adjustment application only if the priority for their country and immigrant visa category has been identified by the U.S. government as ready for filing.

A separate provision would allow eligible foreign nationals to request an exemption from the per-country or annual immigrant visa quotas and adjust status as follows:

• Beneficiaries of approved family-based visa petition with a priority date that is more than two years old, for a fee of $2,500;
• Beneficiaries of approved EB-1, EB-2, or EB-3 visa petition with a priority date that is more than two years old, for a fee of $5,000; and
• Beneficiaries of approved EB-5 petitions with a priority date that is more than two years old, for a fee of $50,000.

The adjustment of status provisions would take effect 180 days after enactment or on May 1, 2022, whichever is earliest. The provisions concerning immigrant visa exemptions would sunset on September 30, 2031, but would remain in effect for a foreign national who requested an exemption from numerical limits and paid the requisite fee until DHS makes a final administrative decision on the adjustment application.

The bill would impose new fees for certain immigration benefits as follows.

 

 

 

 

 

In addition, educational institutions and exchange program sponsors would be required to pay a fee of $250 for each F-1, M-1, and J-1 nonimmigrant.

The bill would allocate $2.8 billion to U.S. Citizenship and Immigration Services to increase its capacity to adjudicate applications under the bill’s temporary parole and adjustment of status provisions, as well as to reduce existing USCIS case backlogs.

The Build Back Better Act now moves to the Senate, where it will be subject to debate, as well as to review by the Senate Parliamentarian to determine whether its provisions are appropriate for a budget reconciliation measure. Its prospects for passage – and the prospects for its immigration provisions – are not yet clear.

Fragomen is closely monitoring the bill and will provide updates as it moves through the Senate.