Bipartisan groups of lawmakers in both the House of Representatives and the Senate reintroduced the Afghan Adjustment Act (AAA) last week. The bill, similar to a version introduced in the last Congress, would fix a problem that will only get more urgent: tens of thousands of Afghans who were evacuated or fled to the United States (or were stranded here) when the U.S. military withdrew from Afghanistan and the Taliban retook control in 2021 have no viable way to apply for permanent legal status in the U.S., leaving them in limbo.

The Biden administration is already conducting a second round of two-year grants of “humanitarian parole” for Afghan evacuees. But while humanitarian parole allows someone to temporarily live and work legally in the United States, it doesn’t let them apply for a green card or any permanent status. Furthermore, like any discretionary immigration program, parole is subject to continued executive approval and could be eliminated by a future president – or struck down in court.

Right now, Afghan evacuees are faced with a patchwork of immigration options. Over 17,000 Afghans have filed asylum applications. While hardly any of those applications have been denied, it’s not a guarantee for every evacuee. Fleeing a war isn’t enough to qualify for asylum in the United States. And evacuees who haven’t already filed an asylum application could be ineligible due to the one-year deadline for filing an asylum application, though U.S. Citizenship and Immigration Services has indicated it will accept late asylum applications from certain parolees.

In 2022, the Biden administration designated Afghanistan for Temporary Protected Status, allowing Afghans in the U.S. who hadn’t been paroled in (like those on student visas) to stay here temporarily rather than forcing them to return to Taliban rule. But TPS is subject to many the same limitations that parole is, including that it can be taken away in the future and that it doesn’t provide a path to permanent status.

Special Immigrant Visas, available to Afghans who assisted the U.S. military during its invasion and occupation, do allow the recipient to apply for a green card – but the SIV process has been slow and opaque. In fact, tens of thousands of Afghan evacuees had already applied for SIVs and were waiting for a decision when they were evacuated instead. As of early 2022, the last data available, DHS said that over 33,000 Afghan evacuees were SIV applicants.

Without anything that allows Afghan evacuees to apply for green cards because they are evacuees, some people will inevitably be left out – not because they don’t meet existing criteria to become permanent residents and U.S. citizens, but simply because there’s no “line” for them to get into in the first place. Only Congress can fix that problem, and the AAA is the solution that Democrats and Republicans alike have landed on.

Here’s how the Afghan Adjustment Act of 2023 would work:

  • Afghans who are in the U.S. as of the date the bill is enacted – both those who had entered on visas and those who were paroled into the U.S. during and after the withdrawal – and their spouses and kids would be eligible to apply for green cards, once the Department of Homeland Security issues guidance about how exactly they should do so. (The bill requires DHS to issue interim guidance within 90 days of the bill’s passage, and final guidance within the first year.)
  • Afghans who enter the U.S. after the bill is enacted would also be eligible for green cards, if the Department of Homeland Security certifies that they “directly and personally supported” the U.S. mission in Afghanistan. (This provision could help Afghans who applied for humanitarian parole, but were stymied by the slow and inconsistent way DHS adjudicated those applications.)
  • The applicants will be subjected to the same criminal and security bars as anyone else applying for admission to the United States. The federal government will be allowed to waive some criminal bars, but it cannot waive any bar related to drug trafficking or terrorism, or ignore any crime committed after July 2021 in the U.S.
  • Applicants for green cards will be subject to a similar level of vetting as they would be if they were applying to come to the U.S. as part of the United States Refugee Admission Program (USRAP) – an intense review process involving several levels of background checks – before being approved.
  • If an applicant submits an endorsement from the State Department (via a “Chief of Mission”) as part of their successful application, their green card will be backdated to the day they were initially admitted or paroled into the U.S. – shortening the wait before they can apply for U.S. citizenship.
  • Afghans who receive green cards under this bill won’t be subjected to the typical five-year waiting period before being able to receive certain public benefits.
  • The bill also expands eligibility for Special Immigrant Visas to certain Afghans who helped the U.S. in Afghanistan but had been ineligible for SIV status, such as female members of Afghanistan’s former military units.

In the past, when the U.S. has done massive humanitarian airlifts during moments of crisis, it’s found itself in a similar position – and, often, Congress has resolved the problem by passing an adjustment act. The Cuban Adjustment Act, passed in 1966, opened a path for Cubans to get green cards soon after their arrival in the U.S. that lasted for nearly half a century. In 1977, Congress passed a law that allowed Southeast Asian evacuees who were still arriving in the U.S. after the fall of Vietnam to apply for green cards after two years of residency; 175,000 people got permanent legal status under that bill in the 20th century.

In the 21st century, however, Congress has become much more reticent to pass immigration bills. Instead, “must-pass” bills – like the National Defense Authorization Act (NDAA) – which provides funding for the U.S. military – have become vehicles for many other legislative proposals to pass into law.

A new NDAA passed the House last week, but the Senate still needs to take up its version; after that, the two will have to be reconciled and a compromise version pass both houses.

Both advocates and members of Congress hope that the 2023 NDAA could be a vehicle for the AAA. Because the need for the AAA is a direct consequence of the U.S. occupation of (and withdrawal from) Afghanistan, and the Department of Defense has long supported ways for Afghans who assisted the government to become U.S. citizens, including the AAA in the current defense authorization bill is thematically appropriate, to say the least. It’s also, given Congress’ aversion to voting on standalone immigration bills, the most likely way the AAA will pass.

In order for this to happen, though, the AAA will need to be included in the version of the NDAA bill that passes the Senate in the coming weeks. That’s the critical period for tens of thousands of Afghans who are currently living stopgap to stopgap – and who will need a permanent solution before a future president takes the stopgaps away.