Washington, D.C., July 30, 2021: In a news conference on July 29, 2021, President Biden stated that he wanted to see immigration reform proposals included in budget and spending legislation planned for Fall 2021.

‘I think we should include in reconciliation the immigration proposal,’ Biden said. ‘My staff is putting out a message right now,’ the president added.

The budget and spending measures are known as “spending bills” because they determine the funding of U.S. government operations for the new federal fiscal year that starts on October 1. When Congress cannot reach agreement on spending bills before the end of the fiscal year, Congress typically approves interim funding bills known as “continuing resolutions” that maintain funding levels at the same rate as the previous federal fiscal year.

Under Senate rules, most legislation requires the affirmative vote of 60 Senators to pass to a vote on the floor. The 60-vote threshold is known as the filibuster rule. Spending bills, however, can pass to a vote on the floor of the Senate with approval of 50 Senators. This is known as passing a spending bill through “reconciliation”. Reconciliation is reserved for policies that have a direct budgetary impact — increasing or lowering the federal government’s tax revenue and spending. Reconciliation is not intended to make major policy changes.

Democrats hold 50 votes in the Senate, and have the tie-breaking vote of Vice President Harris. Thus, Democrats could – and likely will – pass this year’s spending bills without approval of any Republican Senators.

The key issues are (i) whether the Democrats can attach immigration reform bills to a spending bill and pass it through reconciliation, and (ii) whether Democrats can hold together their 50 Senators, which includes two wild-card votes from Arizona Senator Sinema, and West Virginia Senator Manchin.

In relation to issue (i), it will be up to the Senate parliamentarian to determine what can be included in the reconciliation bill, which can be passed by a majority vote, bypassing the 60-vote threshold needed to break a filibuster. News reports confirm that immigration bills have in the past been included in spending bills passed through reconciliation.

Nevertheless, the reform and modernization of the U.S. immigration system is so vast that it challenge the potential use of reconciliation to pass immigration reform. Senator Menendez of New Jersey indicated that he believes that granting legal status to Dreamers, TPS and DACA recipients is likely to be approvable through reconciliation, but did not believe that it would be possible to pass policy improvements such as ending the 3-year and 10-year bars to admissibility through reconciliation.

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.