This vote was on preserving an amendment by Robert Menendez, D-N.J., that would move from May 2005 to January 2007 the cutoff date for those currently in the backlog awaiting green cards. Menendez said this amendment would have the effect of erasing a provision in the underlying bill that would mean pending green card applications filed after May 2005 would be cancelled and those affected would not be able to reapply. The amendment was offered to a bill intended to overhaul America's immigration system. Among other things, the bill establishes several new temporary and permanent visas in an effort to encourage the estimated 12 million illegal immigrants living in the United States to legitimize their residency.

"The Senate bill proposes a radical change to who and how you can come to this country, but it also cancels the applications that are pending—pending—of many people who have been waiting patiently in line for family-based visas," Menendez said. "If you are a U.S. citizen or lawful permanent resident, you filed after May of 2005, the date that arbitrarily was taken and put into the bill to bring in a relative to the family immigration system, your application is gone. It is voided. You are told: Get to the back of the line—the back of the line, by the way, which is the back of the line with people who violated the law, who violated the law. Imagine that."

Jon Kyl, R-Ariz., spoke against the amendment. He said that the underlying bill is a carefully crafted compromise and that Menendez's amendment would cost the government tremendous amounts of money. He also said the bill drew the cutoff date at May 2005 because there is such a large backlog of certain types of green card applications that people who applied after that time have no "reasonable expectation" of being permitted to immigrate. He said the government declared that there was such a large backlog of these types of visa applications that they would not process them if they were submitted after that date.

"What we have tried to do is to be fair and say, if you have a reasonable expectation you will be permitted to immigrate to the United States, we will allow you to come in, and we will do it within a very short period of time—8 years, or perhaps less than that period of time, as opposed to the perhaps 20 or 30 years it may have otherwise taken. If you didn't have a reasonable expectation to get in, then you are not going to come," Kyl said.

Opponents of Menendez's amendment made a parliamentary move (called a "point of order") in an attempt to defeat the amendment. A "point of order" is a procedural motion senators may bring up when they feel a bill, amendment or other motion violates certain rules set out by Congress to govern itself. Unless senators vote to waive those rules – which usually takes 60 votes, a large margin in the Senate -- the bill, amendment or motion in question can be killed by the point of order.

A point of order was raised against Menendez's amendment as violating the Senate's rule known as PAYGO, which requires any legislation that creates new spending or reduces revenues be offset by a reduction in spending, or creation of new revenue.. Menendez called a vote on waiving those rules and allowing his amendment to go forward.

The waiver motion was rejected 53-44. Though more voted to waive the rules than did not, the vote fell short of the three-fifths majority (60 votes) required in this instance. The majority of Democrats voted to waive the rules, with one exception: Robert Byrd of West Virginia. The majority of Republicans voted not to waive the rules, though five sided with Democrats. Thus, the motion to waive the rules was defeated, and as a result Menendez's amendment was killed. The bill went forward without language that would have moved from May 2005 to January 2007 the cutoff date for those currently in the backlog awaiting green cards.