Over the past few weeks, U.S. Senate leaders have twice gone before the Senate parliamentarian with proposals to include a pathway to citizenship in the budget reconciliation process. But even with solid precedents, evidence of strong budgetary effects, and the potential for large impacts on the U.S. economy as a whole—and on ordinary Americans across the country—the parliamentarian twice ruled it inappropriate to provide access to green cards in the reconciliation bill. While immensely disappointing, the fight is not over. Among the alternative avenues that congressional leaders are discussing is immigration parole—a temporary status that could offer undocumented immigrants protection from deportation and grants them the ability to obtain a work permit.
Parole is not a pathway to citizenship, which immigration advocates have long championed. Nonetheless, as this column explains, parole has a long and bipartisan history, and it potentially satisfies the parliamentarian’s biggest concerns. If a parole provision were written to include anyone who entered the United States before January 1, 2011, it would benefit up to 7.1 million undocumented immigrants across the country.
The history of parole
Congress first legislated the use of parole with the Immigration and Nationality Act of 1952 in order to allow the government to temporarily bring people into the United States “for emergent reasons or for reasons deemed strictly in the public interest.” Over the past 70 years, parole has been used repeatedly by presidents of both parties—with bipartisan support—to bring a range of groups and individuals into the country. It was first used in 1956, when President Dwight D. Eisenhower paroled in tens of thousands of Hungarians after the country’s failed revolution. Past presidents similarly used parole authority in 1962 to bring in Chinese refugees who had fled to Hong Kong; for Cuban refugees in the 1960s and beyond, reaching a high-water mark with the Mariel boatlift in 1980; and for Vietnamese, Cambodians, and Laotians in the 1970s following the Vietnam War.
More recently, parole has generally fallen into individual and categorical grants. On the individual end, U.S. Citizenship and Immigration Services (USCIS) details the process for humanitarian parole to allow people into the United States, something being used right now for Afghan nationals. USCIS also allows people on temporary statuses such as Deferred Action for Childhood Arrivals (DACA) to apply for advance parole so they can travel outside the country and be allowed back in once they return.
Administrations have also created programmatic grants of parole through efforts such as the military parole in place program, started in 2013; the Haitian Family Reunification Parole program and the Central American Minors Refugee and Parole program, started in 2014; and the Filipino World War II Veterans Parole program, started in 2016.
Once paroled into the country, individuals can apply for a work permit on a case-by-case basis. And while parole itself would not offer an independent pathway to a green card or citizenship, it would allow some people who should otherwise already be able to adjust to permanent status and get a green card to do so. Section 245(a) of the Immigration and Nationality Act requires that a person be either admitted—that is, enter the country lawfully—or paroled to be able to adjust to status. For undocumented immigrants living in the United States who entered without inspection and have an immediate relative who is a citizen, parole would satisfy that existing prerequisite so they can apply for and receive a green card, rather than create a new pathway to permanent status. And if Congress were to make an additional change to parole, such as reinstating Section 245(i), an even wider category of people who should already be eligible for green cards—either because of family relationships or employment—would be able to adjust to permanent residency. The Center for American Progress estimates that 1.5 million undocumented immigrants who would be eligible for a January 1, 2011, parole could benefit from this wider change out of an estimated 2.3 million people who would benefit from reinstating Section 245(i).
And while parole has historically not been granted to people already in the United States who overstayed their visas since they were technically already admitted lawfully into the country, it is within Congress’ purview to allow the usage of parole regardless of whether a person entered without status or overstayed a visa, and so this analysis includes all those who might be eligible for parole.
Parole and the parliamentarian
The Senate’s Byrd rule governs what can and cannot be included in a budget reconciliation bill. To pass this rule, any provision must have 1) an impact on federal budget revenues or outlays and 2) budgetary impacts that outweigh the policy impacts—a rule known as the merely incidental test.
At a cost of roughly $140 billion, both of the pathway to citizenship options previously put before the parliamentarian passed the first part of the Byrd rule test. But the merely incidental test is subject to the parliamentarian’s interpretation. In both her recent opinions on immigration, she raised three main concerns in arguing broadly that a pathway to citizenship violated the merely incidental test: It would create a new pathway to status; a pathway to citizenship contains life-changing benefits; and a future Congress could revoke the protections through reconciliation. Parole addresses each of these concerns.
First, unlike bills such as the American Dream and Promise Act or measures to update the registry date, parole does not create a pathway to permanent status. And because parole has been part of immigration law since 1952, it is not in any sense a new process.
Second, parole comes with a number of benefit limitations that distinguish it from green cards. For one, no one automatically receives a work permit with parole; they have to apply for it on a case-by-case basis. Similarly, recipients cannot simply travel abroad as green card holders can, but rather would have to apply for advance parole—at the government’s discretion—each time they want to leave the country. Additionally, unlike green card holders, parolees cannot sponsor their family members for permanent residence nor can they make campaign contributions—other factors that the parliamentarian cited in her opinion.
Finally, the parliamentarian expressed concerns that green cards and permanent legalization are so life-changing that allowing a future Congress to revoke that status via reconciliation would set a dangerous precedent. Yet parole is a temporary status—and one, given its temporary nature, that a future Congress could revoke anyway, either through reconciliation or by regular order.
On its face, granting parole falls far short of giving people permanent residency and a new pathway to citizenship. Nonetheless, for the up to 7.1 million undocumented immigrants who could qualify—the vast majority of whom have never had status in the past—having a durable, long-term protection would be a positive change. And for people with DACA or TPS who have had to live their lives 18 months to two years at a time, having a longer status could bring additional relief. Nonetheless, the fight will continue to achieve a full pathway to citizenship for all undocumented immigrants. As senators pursue all avenues to grant relief to undocumented immigrants, parole is an important policy consideration that should pass parliamentary muster.
Philip E. Wolgin is the managing director for Immigration Policy at the Center for American Progress. Nicole Prchal Svajlenka is the associate director of research on the Immigration Policy team at the Center. Claudia Flores is the associate director of policy and strategy on the Immigration Policy team at the Center.
The authors thank Josh Bernstein, Carlos Guevara, Lia Parada, and Kerri Talbot for their helpful suggestions.
These estimates are based on analysis of 2018 and 2019 1-year American Community Survey (ACS) microdata accessed through the University of Minnesota’s IPUMS USA database. An estimated 7.1 million undocumented immigrants entered the United States before January 1, 2011.
However, for several reasons, it is difficult to estimate the subset of this population eligible to immediately adjust status and apply for a green card through immediate family relationships or their employment. First, the ACS does not ask individuals about their immigration status. Using a series of edits—based on characteristics such as year of arrival in the United States, country of birth, occupation, and certain family relationships—the authors identified records of people they believe are likely to be undocumented. Additionally, researchers using ACS data cannot identify how many undocumented immigrants overstayed a visa as opposed to entering the United States without inspection. Researchers also cannot identify who is eligible for employer sponsorship or whether a visa would be available to them immediately. In an effort to match USCIS guidance on typical requirements for employment-based visa categories, this analysis counts as eligible for employer sponsorship those undocumented immigrants who are employed but not self-employed and those who have received a bachelor’s or advanced degree. Lastly, because the data only show family relationships for individuals living in the same households, the analysis cannot capture people who may be eligible—for example, parents of U.S. citizens who are themselves adults—who are not living with a family member who could sponsor them, nor does it attempt to estimate undocumented minor children of U.S. citizen parents.