Green Card on Capitol Hill: Will lawmakers dash the hopes of more than a million Indian applicants … again?

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“I am excited about this bill because it enables us to get our Green Card in a year or two by paying $5,000 instead of waiting 195 years!” exclaims Neha Mahajan, co-founder of Skilled Immigrants in America.

This Sept. 13, 2021, Green Card applicants from India, numbering an estimated 1.2 million, got renewed hope that they may not have to wait for decades to get permanent residence. The reason for some hope? Democrats included amendments on immigration to the massive $3.5 trillion Budget Reconciliation Bill, that would potentially enable Indians in line for years and years, to get their Green Cards. It does that by having these applicants pay a hefty sum– all of it adding up to bringing money into the treasury to pay for other social programs presumably.

For a family of four, Mahajan said, it would be $20,000, yet she calls it ‘the light at the end of the tunnel.’

With the current rules and the long backlog, “Right now, there is no guarantee for our families. Our kid may age out; Our family may be separated,” Mahajan says.

Lawmakers have approached the office of the Senate Parliamentarian on whether some fairly life-changing immigration amendments could be pushed with the massive Reconciliation Bill.

Congressman Jerry Nadler, D-NY pushed through the Amendment in the Nature of a Substitute (ANS), subtitled, “Immigration Provisions” late on Sept. 11 night.

Everyone is eagerly awaiting Senate Parliamentarian, Elizabeth MacDonough’s decision on whether the pathway to a Green Card will remain in the budget bill or go back to being part of the overall immigration reform bill that is heading nowhere.

Democrats and supporters are hoping that the hefty payments required for applicants to secure permanent residence would bring enough money for MacDonough to keep it in the Budget Reconciliation bill.

However, according to Vox.com, even if MacDonough nixes the green card provisions, “Though it is rarely done, Democrats could overrule MacDonough’s formal opinion with a simple Senate majority and include immigration reform in the budget bill anyway.”

But MacDonough is not the only hurdle to be crossed, according to Prakash Khatri, former Ombudsman at the U.S. Citizenship and Immigration Services, and now an immigration attorney.

There is a spanner in the works inside the very provisions that the immigration amendment contains – it relates to Temporary Protected Status – clauses that could kill the whole effort.

“The U.S. Code clearly says that any change in the status of TPS holders would require a supermajority in the Senate to pass,” Khatri told News India Times. “8USCode, Section 1254a, the TPS Statute, has a provision that basically states that a supermajority (60 votes) is required in the Senate for any provision for aliens receiving TPS,” he said.

In Khatri’s view the TPS being included in the immigration amendment leaves the provisions no chance once they leave the House, and he speculates why it was put there in the first place to kill the bill. To get the immigration amendment through, someone would have to strike out that TPS provision.

“Its as if someone is playing a game it seems. They put all those clauses but they know that rules as set up, TPS needs a supermajority,” Khatri speculated. And why would Democrats do that?

Election Game?

“Seems like an election game … because Democrats really want to show they are trying to do something about it even though they know its going to be stricken,” Khatri said, adding that he found it odd that an ‘innocuous’ provision like TPS was added in the first place.

Any Senator can move for a Point of Order which would prevent the immigration provisions from going through. “It baffles my mind that all the do-gooders for immigrants should include this TPS provision,” Khatri said. He is hoping it will be removed before the Senate considers the bill.

However, Khatri said the amendment relating to immigration was “very, very good and would dramatically change the situation for many Indians. This would be a godsend.”

Twitter began humming with speculation on the chance the Green Card package in the Budget would become a reality.

“Although it’s not final, the seismic House Bill on immigration is a sign of hope for millions of families, after decades of waiting for meaningful change to our immigration system,” Boundless CEO Xiao Wang, said on the company website. “This is our best and only shot at immigration reform since 1990, and its inclusion in the budget reconciliation process is a reflection of the positive economic impact of immigrants in America.”

Anirban Das, founder and president of Skilled Immigrants in America, tweeted Sept. 15, “The $5k fees will mostly be paid by Indian applicants and maybe some Chinese – a penalty for being born in a certain country. So yes, country caps will still play a role. But its better than the current situation. Makes the Visa Bulletin obsolete for someone waiting > 2 years.”

A skeptical Jinesh Sanghvi responding to Das, tweeted back, “First, we will end up paying 5k applicaion fee. Then USCIS will sit on it for ages and give excuse of understaff, overflow of appln and budget crunch. Then they will launch premium services (may be 10k per appln). So you know we will be exploited on a different level.”

Another person, Amit Panda tweeted, “Anything is better than current situation, there is no price on years lost.”

House Judiciary Committee Chairman Nadler, in his opening statement underlined the bottom line for such an amendment. “the immigration provisions in this legislation serve as a vital investment in human infrastructure that reflects our commitment to a stronger U.S. economy and a vibrant future for all Americans,” Boundless quotes him saying.

Immigration Provisions

The details of the immigration provisions are available at https://judiciary.house.gov/uploadedfiles/judiciary_committee_print.pdf, and also on the Boundless Immigration website.

The provisions deal with Dreamers and Green Card applicants.

Some people without legal status can apply for a Green Card paying 1,500 and passing background and medical checks.

Dreamers can apply if they arrived in the U.S. before they were 18 and stayed here continuously; and have been here since Jan. 1, 2021. Plus if they served in the armed forces; graduated or are enrolled for studies; and were working for 3 years consistently before applying.

There are provisions for those who qualify in different statuses like Temporary Protected Status, Deferred Enforced Departure, Essential Workers if they have been in the United States continuously since January 1, 2021 and show a consistent record of earned income

These new legalization provisions would not go into effect until 6 months after they are passed or on May 1, 2022, “whichever is earliest,” according to the legislation.

The green card applicants who fall under family and employment-based category are most important for Indians.

“A family-based green card applicant whose priority date is more than 2 years old could apply to adjust their status by paying a $2,500 fee,” notes Boundless Immigration.

“Employment-based green card applicants with a priority date that is more than 2 years old could also apply to adjust their status by paying a $5,000 fee.”

Boundless also notes that “As with the legalization provisions, these adjustment of status provisions would not go into effect until 6 months after they are passed or on May 1, 2022, whichever comes first.”

But going by former Ombudsman Khatri’s take on the legalization provisions and the inclusion of TPS, it may have been a failed attempt from the start.