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Senate parliamentarian again blocks Democratic bid to legalize immigrants in budget bill

The top Senate official tasked with interpreting the chamber's rules blocked Democrats' second bid to legalize undocumented immigrants through a budget bill on Wednesday, dealing another blow to Democratic efforts to create a massive legalization program without Republican support, according to guidance obtained by CBS News.

Earlier this month, Elizabeth MacDonough, the Senate parliamentarian, said a Democratic plan to allow an estimated 8 million immigrants in the U.S. to apply for permanent legal status could not be included in the reconciliation process, which bypasses the 60-vote threshold most bills need to pass the Senate.

Elements included in the budget reconciliation process, which allows bills to pass with a simple majority of senators, need to have a direct impact on the U.S. budget. The fate of the reconciliation package remains uncertain, as moderate and progressive Democrats continue to negotiate the size and scope of the legislation.

The earlier plan — which would have benefited undocumented immigrants who arrived in the U.S. as children, those with temporary humanitarian status, farmworkers and other pandemic-era essential workers — would represent a "tremendous and enduring policy change," MacDonough ruled on September 20.

After that setback, Democrats presented the parliamentarian with a different argument. They proposed changing the date on an immigration law known as the registry, which allows immigrants who were in the U.S. before a specified date to apply for green cards. The registry date is currently 1972, rendering it largely obsolete.

In a four-sentence guidance on Wednesday, MacDonough said the registry proposal was also a "weighty policy change."

"The change in status to [lawful permanent resident] remains a life-long change in circumstances the value of which vastly outweighs its budgetary impact," the guidance said, noting that the registry plan would benefit many of the same immigrants as the first proposal.

The latest guidance from the parliamentarian is another setback for Democratic lawmakers and immigrant advocates, many of whom view the budget reconciliation process as the only possible avenue to place many of the country's estimated 11 million undocumented immigrants on a pathway to permanent U.S status.

Republicans in the Senate, including those who have previously supported bills that included a legalization program, have rallied against the Democrats' plan. 

Democratic aides, however, said on Wednesday that they still have other proposals they could present to the parliamentarian. "We have prepared for different scenarios," one Democratic aide said. "We're not done here."  

Remaining options include proposals that would allow certain immigrants to obtain temporary immigration benefits known as deferred action and parole, the aides said.  

The former relief shields beneficiaries from deportation and allows them to work legally in the U.S. The latter benefit permits immigrants to live in the U.S. legally on a temporary basis but could also allow some to obtain green cards through petitions from family members who are U.S. citizens.

Presidential administrations have previously employed these tools unilaterally, including in 2012, when the Obama administration created the Deferred Action for Childhood Arrivals (DACA) program to provide deportation relief and work permits to undocumented immigrants who came to the U.S. as minors.  

Here is the parliamentarian's full guidance:

This registry proposal is also one in which those persons who are not currently eligible to adjust status under the law (a substantial proportion of the targeted population) would become eligible, which is a weighty policy change and our analysis of this issue is thus largely the same as the [lawful permanent resident] proposal.

While this registry proposal is not a wholly new immigration policy, it is still distinguishable from the [Personal Responsibility and Work Opportunity Reconciliation Act of 1996] text in that it is an adjustment in status through an amendment to the [Immigration and Nationality Act] and not free standing or to the various government benefit programs. 

The number of beneficiaries and score of this amendment to the INA are largely the same as those of the earlier proposal which does not dramatically shift the balance of policy vs. score.

The change in status to [lawful permanent resident] remains a life-long change in circumstances the value of which vastly outweighs its budgetary impact.

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