Unauthorized Alien Students: Issues and
“DREAM Act” Legislation
Andorra Bruno
Specialist in Immigration Policy
February 3, 2010
Congressional Research Service
7-5700
www.crs.gov
RL33863
CRS Report for Congress
P
repared for Members and Committees of Congress
Unauthorized Alien Students: Issues and “DREAM Act” Legislation
Summary
Since the election of President Obama, supporters of comprehensive immigration reform have
urged the President and Congress to pursue reform legislation. While the prospects for
immigration reform in the 111th Congress are unclear, there has been speculation that there may
be an effort to enact a measure, commonly referred to as the “DREAM Act,” to enable certain
unauthorized alien students to legalize their status.
Unauthorized aliens in the United States are able to receive free public education through high
school. They may experience difficulty obtaining higher education, however, for several reasons.
Among these reasons is a provision enacted in 1996 that prohibits states from granting
unauthorized aliens certain postsecondary educational benefits on the basis of state residence,
unless equal benefits are made available to all U.S. citizens. This prohibition is commonly
understood to apply to the granting of “in-state” residency status for tuition purposes.
Unauthorized alien students also are not eligible for federal student financial aid. More broadly,
as unauthorized aliens, they are not legally allowed to work and are subject to being removed
from the country.
Multiple bills have been introduced in recent Congresses to address the unauthorized student
population. Most have proposed a two-prong approach of repealing the 1996 provision and
enabling some unauthorized alien students to become U.S. legal permanent residents (LPRs)
through an immigration procedure known as cancellation of removal. Bills proposing this type of
relief for unauthorized students are commonly referred to as the DREAM Act. While there are
other options for dealing with this population, this report deals exclusively with the DREAM Act
approach in light of the widespread congressional interest in it.
Two similar stand-alone DREAM Act bills have been introduced in the 111th Congress (S. 729
and H.R. 1751). Like most DREAM Act bills introduced in prior Congresses, these measures
would repeal the 1996 provision and enable eligible unauthorized students to adjust to LPR status
through a two-stage process. Aliens granted cancellation of removal under the bills would be
adjusted initially to conditional permanent resident status. To have the condition removed and
become full-fledged LPRs, the aliens would need to meet additional requirements.
This report will be updated as legislative developments occur.
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Unauthorized Alien Students: Issues and “DREAM Act” Legislation
Contents
Introduction ................................................................................................................................ 1
Estimates of Potential DREAM Act Beneficiaries........................................................................ 2
Higher Education Benefits and Immigration Status...................................................................... 3
1996 Provision............................................................................................................................ 3
Action in the 111th Congress........................................................................................................ 4
S. 729 ................................................................................................................................... 4
H.R. 1751 ............................................................................................................................. 5
Pro/Con Arguments..................................................................................................................... 6
Appendixes
Appendix. Action in the 109th and 110th Congresses..................................................................... 8
Contacts
Author Contact Information ...................................................................................................... 13
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Unauthorized Alien Students: Issues and “DREAM Act” Legislation
Introduction
The November 2008 election results sparked renewed interest in immigration reform among
reform supporters. While it is unclear at this time what type of immigration reform agenda, if any,
President Obama’s Administration and congressional leaders will pursue, there has been
speculation that there may be an effort to enact legislation, commonly referred to as the “DREAM
Act,” to enable certain unauthorized alien students to legalize their status.1 Legalization of
unauthorized (illegal) aliens—termed “earned legalization” by supporters and “amnesty” by
opponents—has proven to be highly controversial in recent years. And it may become even more
controversial if economic hard times and rising unemployment rates result in increased opposition
to granting legal status to potential competitors for limited job opportunities. While still
controversial, proposals for legalization of the subpopulation of unauthorized aliens who were
brought, as children, to live in the United States by their parents or other adults have enjoyed a
broad base of support in recent Congresses.
While living in the United States, unauthorized alien children are able to receive free public
education through high school.2 Many unauthorized immigrants who graduate from high school
and want to attend college, however, face various obstacles. Among them, a provision enacted in
1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)3
discourages states and localities from granting unauthorized aliens certain “postsecondary
education benefits.” More broadly, as unauthorized aliens, they are unable to work legally and are
subject to removal from the United States.4
In recent years, multiple bills have been introduced in Congress to provide relief to unauthorized
alien students. In most cases, these bills have proposed to repeal the 1996 provision and enable
certain unauthorized alien students to adjust to legal permanent resident (LPR) status in the
United States. These bills have often been entitled the Development, Relief, and Education for
Alien Minors Act, or the DREAM Act. In this report, however, following common usage, the
term DREAM Act is used to refer to similar bills to provide relief to unauthorized alien students
whether or not they carry that name. In the 110th Congress, the Senate considered a major
immigration bill that included DREAM Act provisions (S. 1639), as well as a stand-alone
DREAM Act bill (S. 2205). Neither of these bills was passed by the Senate. DREAM Act bills (S.
729, H.R. H.R. 1751) have again been introduced in the 111th Congress.
1 See, for example, Muzaffar Chishti and Claire Bergeron, “Push for Comprehensive Immigration Reform Grows, But
Several Obstacles Remain,” Migration Information Source, April 15, 2009, http://www.migration information.org.
2 For a discussion of the legal basis for the provision of free public education, see CRS Report RS22500, Unauthorized
Alien Students, Higher Education, and In-State Tuition Rates: A Legal Analysis, by Jody Feder (hereafter cited as CRS
Report RS22500).
3 IIRIRA is Division C of P.L. 104-208, September 30, 1996.
4 Unauthorized alien students are distinct from a group commonly referred to as foreign students. Like unauthorized
alien students, foreign students are foreign nationals. Unlike unauthorized alien students, however, foreign students
enter the United States legally on nonimmigrant (temporary) visas in order to study at U.S. institutions. See CRS
Report RL31146, Foreign Students in the United States: Policies and Legislation, by Chad C. Haddal.
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Estimates of Potential DREAM Act Beneficiaries
As discussed below, DREAM Act bills introduced in recent Congresses would enable certain
unauthorized alien students to obtain LPR status in the United States, in the case of most bills
through a two-stage process. Requirements to obtain conditional LPR status (stage 1) typically
include residence of at least five years in the United States and a high school diploma (or the
equivalent) or admission to an institution of higher education in the United States. Requirements
to have the condition removed and thereby become a full-fledged LPR (stage 2) typically include
acquisition of a degree from an institution of higher education in the United States, completion of
at least two years in a bachelor’s or higher degree program, or service in the uniformed services
for at least two years.
In 2003, using data from the March 2000, March 2001, and March 2002 Current Population
Surveys (CPS), Census 2000, and supplementary research, Jeffrey S. Passel of the Pew Hispanic
Center made estimates of the number of potential DREAM Act beneficiaries.5 According to his
analysis, each year roughly 65,000 undocumented immigrants graduate from high school who
have lived in the United States for at least five years. Passel further estimated as part of this 2003
analysis that there were about 7,000 to 13,000 unauthorized aliens enrolled in public colleges and
universities in the United States who had lived in the United States for at least five years and
graduated from U.S. high schools.
In 2006, using data from Census 2000 and other sources, the Migration Policy Institute (MPI)
published estimates of the population eligible for legal status under DREAM Act proposals before
the 109th Congress (discussed in the Appendix).6 These bills would have established a two-stage
process for unauthorized alien students to obtain LPR status. The same requirements outlined
above to obtain conditional LPR status and to have the condition removed would have applied
under these bills. According to the MPI estimates, 360,000 unauthorized high school graduates
between the ages of 18 and 24 would have been immediately eligible for conditional LPR status.7
Of this total, an estimated 50,000 were enrolled in college and thus were considered likely to be
eligible for full-fledged LPR status.
In 2007, using data from the March 2007 CPS and other sources, the Center for Immigration
Studies (CIS) estimated the number of potential beneficiaries under the DREAM Act bill
considered in the Senate in October 2007 (S. 2205). CIS put the number of potential beneficiaries
at 2.1 million based on the physical presence and age requirements in the bill, as described
below.8
5 Unpublished work by Passel, October 21, 2003 (on file with CRS).
6 Jeanne Batalova and Michael Fix, New Estimates of Unauthorized Youth Eligible for Legal Status Under the DREAM
Act, Migration Policy Institute, Immigration Backgrounder, October 2006, no. 1, at http://www.migrationpolicy.org.
7 This 360,000 estimate is as of the end of 2005. According to the authors, they focus on 18- to 24-year olds because
they consider this group the most likely to immediately qualify to adjust status under the DREAM Act. The authors
assume that “if the DREAM Act becomes law, most 18-24 year olds who receive conditional status would either enroll
in college or serve in the military.” Ibid., p. 4.
8 Center for Immigration Studies, “DREAM Act Offers Amnesty to 2.1 Million,” news release, October 23, 2007, at
http://www.cis.org.
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Higher Education Benefits and Immigration Status
Unauthorized aliens are neither entitled to nor prohibited from admission to postsecondary
educational institutions in the United States. To gain entrance to these institutions, these students
must meet the same requirements as any other student, which vary depending on the institution
and may include possessing a high school diploma, passing entrance exams, and surpassing a
high school grade point average (GPA) threshold. Although admissions applications for most
colleges and universities request that students provide their Social Security numbers, this
information typically is not required for admission.
Even if they are able to gain admission, however, unauthorized alien students often find it
difficult, if not impossible, to pay for higher education. Under the Higher Education Act (HEA) of
1965, as amended, they are ineligible for federal financial aid.9 In most instances, unauthorized
alien students are likewise ineligible for state financial aid. Furthermore, as explained in the next
section, they also may be ineligible for in-state tuition.
1996 Provision
Section 505 of IIRIRA places restrictions on state provision of educational benefits to
unauthorized aliens. It directs that an unauthorized alien
shall not be eligible on the basis of residence within a State (or a political subdivision) for
any postsecondary education benefit unless a citizen or national of the United States is
eligible for such a benefit (in no less an amount, duration, and scope) without regard to
whether the citizen or national is such a resident.
There is disagreement about the meaning of this provision, and no authoritative guidance is
available in either congressional report language or federal regulations.10 The conference report
on the bill containing IIRIRA did not explain §505. (A conference report on a predecessor IIRIRA
bill, which contained a section identical to §505, described the section as “provid[ing] that illegal
aliens are not eligible for in-state tuition rates at public institutions of higher education.”11) Some
interested parties have argued that Congress exceeded its authority in §505 by legislating on how
states can dispense state benefits.
Although §505 does not refer explicitly to the granting of “in-state” residency status for tuition
purposes and some question whether it even covers in-state tuition, the debate surrounding §505
has focused on the provision of in-state tuition rates to unauthorized aliens. A key issue in this
debate is whether it is possible to grant in-state tuition to unauthorized students (and not to all
citizens) without violating §505. Various states have attempted to do this. For example, a
9 The HEA is P.L. 89-329, November 8, 1965, 20 U.S.C. §1001 et seq. Section 484(a)(5) sets forth immigration-related
eligibility requirements for federal student financial aid, and §484(g) requires the U.S. Department of Education to
verify the immigration status of applicants for federal financial aid. Also see U.S. Department of Education, Office of
Federal Student Aid, Federal Student Aid Handbook 2008-2009, Volume 1 (Student Eligibility), Chapter 2
(Citizenship), at http://www.ifap.ed.gov/ifap.
10 No implementing regulations on §505 have been issued.
11 U.S. Congress, House Conference Committee, Illegal Immigration Reform and Immigrant Responsibility Act of
1996, conference report to accompany H.R. 2202, 104th Cong., 2nd sess., H.Rept. 104-828, p. 240.
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California law passed in 2001 makes unauthorized aliens eligible for in-state tuition at state
community colleges and California State University campuses.12 The measure, however, bases
eligibility on criteria that do not explicitly include state residency. To qualify for in-state tuition, a
student must have attended high school in California for at least three years and graduated. An
unauthorized alien student is also required to file an affidavit stating that he or she has filed an
application to legalize his or her status or will file such an application as soon as he or she is
eligible. California officials have argued that by using eligibility criteria other than state
residency, their law does not violate the §505 prohibition on conferring educational benefits on
the basis of state residency. Several federal courts have considered whether state laws that
authorize in-state tuition for unauthorized students violate §505.13
Action in the 111th Congress
Senator Durbin and Representative Berman have introduced similar DREAM Act bills in the
111th Congress. Senator Durbin has introduced the Development, Relief, and Education for Alien
Minors (DREAM) Act of 2009 (S. 729), and Representative Berman has introduced the American
Dream Act (H.R. 1751). Both measures have bipartisan cosponsorship.
S. 729
S. 729, the DREAM Act of 2009, is almost identical to S. 774, as introduced by Senator Durbin in
the 110th Congress (and discussed in the Appendix). Like this earlier bill, S. 729 would repeal
IIRIRA §505 and thereby eliminate the restriction on state provision of postsecondary educational
benefits to unauthorized aliens. It also would enable eligible unauthorized students to adjust to
LPR status in the United States through an immigration procedure known as cancellation of
removal. Cancellation of removal is a discretionary form of relief authorized by the Immigration
and Nationality Act (INA)14 that an alien can apply for while in removal proceedings before an
immigration judge. If cancellation of removal is granted, the alien’s status is adjusted to that of an
LPR.15 S. 729 would enable aliens to affirmatively apply for cancellation of removal without first
being placed in removal proceedings, and it would place no limit on the number of aliens who
could be granted cancellation of removal/adjustment of status.
To be eligible for cancellation of removal/adjustment of status under S. 729, an alien would have
to demonstrate that he or she had been physically present in the United States for a continuous
period of not less than five years immediately preceding the date of enactment; had not yet
reached age 16 at the time of initial entry; had been a person of good moral character since the
time of application; and, in a requirement not included in S. 774 in the 110th Congress, had not yet
reached age 35 on the date of enactment of the act.16 The alien also would have to demonstrate
12 The law does not apply to the University of California system.
13 For additional information, see CRS Report RS22500.
14 Act of June 27, 1952, ch. 477, as amended; 8 U.S.C. §1101 et seq.
15 Rules governing cancellation of removal/adjustment of status are set forth in INA §240A.
16 A similar age requirements was included in S. 2205, another DREAM Act bill introduced in the 110th Congress (see
the Appendix). S. 2205 would have required an alien applying for relief to show that he or she was under age 30 on the
date of enactment.
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that he or she had been admitted to an institution of higher education in the United States, or had
earned a high school diploma or the equivalent in the United States.
Aliens applying for relief under S. 729 would be subject to special requirements concerning
inadmissibility and deportability. The INA enumerates classes of inadmissible and deportable
aliens. Under the INA, except as otherwise provided, aliens who are inadmissible under specified
grounds, such as health-related grounds or criminal grounds, are ineligible to receive visas from
the Department of State or to be admitted to the United States by the Department of Homeland
Security.17 The INA similarly enumerates classes of deportable aliens.18 Under S. 729, however,
only specified grounds of inadmissibility and deportability would apply to aliens seeking
cancellation of removal/adjustment of status. To be eligible for cancellation of removal/
adjustment of status under S. 729, an alien would have to demonstrate that he or she was not
inadmissible or deportable on INA criminal, security, smuggling, or international child abduction
grounds. In addition, the alien would have to show that he or she had never been under a final
administrative or judicial order of exclusion, deportation, or removal, with some exceptions.
Aliens granted cancellation of removal under S. 729 would be adjusted initially to conditional
permanent resident status. Such conditional status would be valid for six years and would be
subject to termination. To have the condition removed and become a full-fledged LPR, an alien
would have to submit an application during a specified period and meet additional requirements.
Among these requirements, the alien would need to have demonstrated good moral character
during the period of conditional permanent residence; could not have abandoned his or her U.S.
residence; and would need either a college degree (or to have completed at least two years in a
bachelor’s or higher degree program) in the United States, or to have served in the uniformed
services for at least two years.
S. 729 would place restrictions on the eligibility of aliens who adjust to LPR status under its
provisions for federal student financial aid under Title IV of the Higher Education Act of 1965, as
amended. Under that act, LPRs and certain other eligible noncitizens may receive federal
financial aid. Aliens adjusting status under S. 729, however, would be eligible only for student
loans, federal work-study programs, and services (such as counseling, tutorial services, and
mentoring), subject to the applicable requirements. Unlike other LPRs, they would be ineligible
for federal Pell Grants or federal supplemental educational opportunity grants.
H.R. 1751
The American Dream Act (H.R. 1751) is the same as the bill of the same name (H.R. 1275)
introduced by Representative Berman in the 110th Congress (see the Appendix). H.R. 1751 is
also similar to S. 729 (discussed above). Like the Senate bill, H.R. 1751 would repeal IIRIRA
§505 and thereby eliminate the restriction on state provision of postsecondary educational
benefits to unauthorized aliens. It would likewise enable eligible unauthorized students to adjust
to LPR status in the United States through the cancellation of removal procedure. As under S.
729, aliens could apply for cancellation of removal without first being placed in removal
proceedings, and there would be no limit on the number of aliens who could be granted
cancellation of removal/adjustment of status.
17 The INA grounds of inadmissibility are in INA §212(a).
18 The INA grounds of deportability are in INA §237(a).
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To be eligible for cancellation of removal/adjustment of status under H.R. 1751, an alien would
have to demonstrate that he or she had been physically present in the United States for a
continuous period of not less than five years immediately preceding the date of enactment, had
not yet reached age 16 at the time of initial entry, and had been a person of good moral character
since the time of application. Both bills also would require the alien to demonstrate that he or she
had been admitted to an institution of higher education in the United States, or had earned a high
school diploma or the equivalent in the United States. Unlike S. 729, however, H.R. 1751 would
not require the alien to show that he or she was under age 35 on the date of enactment.
An alien applying for cancellation of removal/adjustment of status under H.R. 1751 also would
have to demonstrate that he or she was not inadmissible or deportable on INA criminal, security,
or smuggling grounds. Unlike under S. 729, the alien would not have to show that he or she was
not inadmissible on international child abduction grounds and would not have to show that he or
she had never been under a final administrative or judicial order of exclusion, deportation, or
removal.
Aliens granted cancellation of removal under H.R. 1751, as under S. 729, would be adjusted
initially to conditional permanent resident status. Such conditional status would be valid for six
years and would be subject to termination. To have the condition removed and become a full-
fledged LPR, an alien would have to apply during a specified period and meet additional
requirements. Among these requirements, the alien would have had to demonstrate good moral
character during the period of conditional permanent residence; could not have abandoned his or
her U.S. residence; and would need either a college degree (or to have completed at least two
years in a bachelor’s or higher degree program) in the United States, or to have served in the
uniformed services for at least two years.
H.R. 1751 would place temporary restrictions on the eligibility of aliens who adjusted to LPR
status under its provisions, for federal student financial aid under Title IV of the Higher Education
Act of 1965, as amended. Aliens adjusting status under the bill would be ineligible for federal Pell
Grants and federal supplemental educational opportunity grants while in conditional permanent
resident status. Once the conditional basis was removed and they became full-fledged LPRs,
these restrictions would no longer apply. By contrast, under S. 774, as discussed above, these
restrictions would be permanent.
Pro/Con Arguments
Those who favor DREAM Act proposals to repeal §505 and grant LPR status to unauthorized
alien students offer a variety of arguments. They maintain that it is both fair and in the U.S.
national interest to enable unauthorized alien students who graduate from high school to continue
their education. And they emphasize that large numbers will be unable to do so unless they are
eligible for in-state tuition rates at colleges in their states of residence.
Advocates for unauthorized alien students argue that many of them were brought into the United
States at a very young age and should not be held responsible for the decision to enter the country
illegally. According to these advocates, many of the students have spent most of their lives in the
United States and have few, if any, ties to their countries of origin. They argue that these special
circumstances demand that the students be granted humanitarian relief in the form of LPR status.
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Those who oppose making unauthorized alien students eligible for in-state tuition or legal status
emphasize that the students and their families are in the United States illegally and should be
removed from the country. They object to using U.S. taxpayer money to subsidize the education
of individuals (through the granting of in-state tuition rates) who are in the United States in
violation of the law. They maintain that funding the education of these students should be the
responsibility of their parents or their home countries. They further argue that it is unfair to
charge unauthorized alien students in-state tuition, while charging some U.S. citizens higher out-
of-state rates.
More broadly, these opponents argue that granting benefits to unauthorized alien students rewards
lawbreakers and, thereby, undermines the U.S. immigration system. In their view, the availability
of benefits, especially LPR status, will encourage more illegal immigration into the country.19
19 For pro and con arguments, see, for example, Lourdes Medrano, “A Dream Deferred,” Arizona Daily Star, May 28,
2006; Eunice Moscoso, “Bill to Aid Immigrant Students Could Pass in New Congress,” Cox News Service, December
17, 2006; and Karina Gonzalez, “Legal Status for Students,” Chattanooga Times Free Press, December 21, 2006.
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Appendix. Action in the 109th and 110th Congresses
Bills to provide relief to unauthorized alien students by repealing the 1996 provision and enabling
certain unauthorized alien students to obtain LPR status have been introduced in recent
Congresses. In both the 107th and 108th Congresses, the Senate Judiciary Committee reported
such bills, known as the DREAM Act.20
Legislation in the 109th Congress
In the 109th Congress, Senator Durbin introduced the Development, Relief, and Education for
Alien Minors (DREAM) Act of 2005 (S. 2075), and Representative Lincoln Diaz-Balart
introduced the American Dream Act (H.R. 5131). Both bills had bipartisan cosponsors.
Both S. 2075 and H.R. 5131 would have repealed IIRIRA §505 and thereby eliminated the
restriction on state provision of postsecondary educational benefits to unauthorized aliens. Both
bills also would have enabled eligible unauthorized students to adjust to LPR status in the United
States through the cancellation of removal procedure. Cancellation of removal is a discretionary
form of relief that an alien can apply for while in removal proceedings before an immigration
judge. If cancellation of removal is granted, the alien’s status is adjusted to that of an LPR. S.
2075 and H.R. 5131 would have allowed aliens to affirmatively apply for cancellation of removal
without being placed in removal proceedings. There would have been no limit on the number of
aliens who could be granted cancellation of removal/adjustment of status under the bills.
Among the eligibility requirements for cancellation of removal/adjustment of status in both S.
2075 and H.R. 5131, the alien would have had to demonstrate that he or she had been physically
present in the United States for a continuous period of not less than five years immediately
preceding the date of enactment, had not yet reached age 16 at the time of initial entry, and had
been a person of good moral character since the time of application. The alien also would have
been required to demonstrate that he or she had been admitted to an institution of higher
education in the United States, or had earned a high school diploma or the equivalent in the
United States.
The eligibility requirements for cancellation of removal/adjustment of status in S. 2075 and H.R.
5131 differed with respect to the applicable INA grounds of inadmissibility and deportability. S.
2075 and H.R. 5131 each specified which of the inadmissibility and deportability grounds would
have applied to aliens seeking to adjust status under its provisions. A greater number of these
grounds would have applied under S. 2075 than H.R. 5131. In addition, to be eligible under S.
2075, an alien could never have been under a final administrative or judicial order of exclusion,
deportation, or removal, with some exceptions.
An alien granted cancellation of removal under S. 2075 and H.R. 5131 would have been adjusted
initially to conditional permanent resident status. Such conditional status would have been valid
for six years and would have been subject to termination. To have the condition removed and
become a full-fledged LPR, the alien would have had to submit an application during a specified
period and meet additional requirements. These requirements would have included that the alien
20 For further information and analysis, see archived CRS Report RL31365, Unauthorized Alien Students: Legislation
in the 107th and 108th Congresses, by Andorra Bruno and Jeffrey J. Kuenzi.
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had demonstrated good moral character during the period of conditional permanent residence; had
not abandoned his or her U.S. residence; and had either acquired a college degree (or completed
at least two years in a bachelor’s or higher degree program) in the United States, or had served in
the uniformed services for at least two years.
Both S. 2075 and H.R. 5131 would have placed restrictions on aliens who adjusted to LPR status
under their provisions, with respect to eligibility for federal student financial aid under Title IV of
the Higher Education Act of 1965, as amended. S. 2075 would have made aliens who adjusted to
LPR status under the bill eligible only for student loans, federal work-study programs, and
services (such as counseling, tutorial services, and mentoring), subject to the applicable
requirements. Thus, they would not have been eligible for federal Pell Grants or federal
supplemental educational opportunity grants. H.R. 5131 would have imposed similar restrictions
on eligibility for federal student financial aid, but they would have been temporary. This bill
would have made aliens adjusting status under its terms ineligible for federal Pell Grants and
federal supplemental educational opportunity grants while they were in conditional permanent
resident status. Once the conditional basis of their LPR status had been removed, these
restrictions would no longer have applied.
The 109th Congress took no action on S. 2075 or H.R. 5131. S. 2075, however, was incorporated
into the Comprehensive Immigration Reform Act of 2006 (S. 2611) as Title VI, Subtitle C. S.
2611 passed the Senate on May 25, 2006, but saw no further action. The major immigration bill
passed by the House in the 109th Congress, the Border Protection, Antiterrorism, and Illegal
Immigration Control Act (H.R. 4437), did not contain any provisions on unauthorized alien
students.
Legislation in the 110th Congress
DREAM Act legislation was introduced in the 110th Congress, both in stand-alone bills and as
part of larger comprehensive immigration reform measures. A selected number of these bills are
described here. Neither the House or Senate passed any of these bills. As discussed below, the
Senate failed to invoke cloture on two measures: S. 1639, a bipartisan comprehensive
immigration reform proposal that included a DREAM Act title, and S. 2205, a stand-alone
DREAM Act bill.
S. 774 and H.R. 1275
The DREAM Act of 2007 (S. 774), introduced by Senator Durbin, and the American Dream Act
(H.R. 1275), introduced by Representative Berman, were similar, but not identical, measures.
Both had bipartisan cosponsors. Both also were highly similar, respectively, to S. 2075 and H.R.
5131 in the 109th Congress.
S. 774 and H.R. 1275 would have repealed IIRIRA §505 and thereby eliminated the restriction on
state provision of postsecondary educational benefits to unauthorized aliens. Both bills also
would have enabled eligible unauthorized students to adjust to LPR status in the United States
through the cancellation of removal procedure, discussed above. Under S. 774 and H.R. 1275,
aliens could have affirmatively applied for cancellation of removal without being placed in
removal proceedings. There would have been no limit on the number of aliens who could be
granted cancellation of removal/adjustment of status under the bills.
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To be eligible for cancellation of removal/adjustment of status under S. 774 or H.R. 1275, an
alien would have had to satisfy a set of requirements. Under both bills, the alien would have had
to demonstrate that he or she had been physically present in the United States for a continuous
period of not less than five years immediately preceding the date of enactment, had not yet
reached age 16 at the time of initial entry, and had been a person of good moral character since
the time of application. Both bills also would have required the alien to demonstrate that he or she
had been admitted to an institution of higher education in the United States, or had earned a high
school diploma or the equivalent in the United States.
Other requirements for cancellation of removal/adjustment of status under S. 774 and H.R. 1275
concerned the INA grounds of inadmissibility and deportability. The eligibility requirements with
respect to deportability from the United States were the same in both bills, while the requirements
with respect to inadmissibility to the country differed somewhat. To be eligible for cancellation of
removal/adjustment of status under either S. 774 or H.R. 1275, an alien would have had to
demonstrate that he or she was not inadmissible or deportable on INA criminal, security, or
smuggling grounds. S. 774 would have further required that the alien not be inadmissible on
international child abduction grounds. In addition, to be eligible for cancellation of
removal/adjustment of status under S. 774, an alien could never have been under a final
administrative or judicial order of exclusion, deportation, or removal, with some exceptions.
Aliens granted cancellation of removal under S. 774 or H.R. 1275 would have been adjusted
initially to conditional permanent resident status. Such conditional status would have been valid
for six years and would have been subject to termination. To have the condition removed and
become a full-fledged LPR, an alien would have had to submit an application during a specified
period and meet additional requirements. Among these requirements, the alien would have needed
to demonstrate good moral character during the period of conditional permanent residence; could
not have abandoned his or her U.S. residence; and would have needed either a college degree (or
to have completed at least two years in a bachelor’s or higher degree program) in the United
States, or to have served in the uniformed services for at least two years.
Both S. 774 and H.R. 1275 would have placed restrictions on the eligibility of aliens who
adjusted to LPR status under their provisions, for federal student financial aid under Title IV of
the Higher Education Act of 1965, as amended. S. 774 would have made aliens who adjusted to
LPR status under the bill eligible only for student loans, federal work-study programs, and
services (such as counseling, tutorial services, and mentoring), subject to the applicable
requirements. Thus, they would not have been eligible for federal Pell Grants or federal
supplemental educational opportunity grants. H.R. 1275 would have imposed similar restrictions
on eligibility for federal student financial aid, but they would have been temporary. Aliens
adjusting status under the House bill would have been ineligible for federal Pell Grants and
federal supplemental educational opportunity grants while in conditional permanent resident
status. Once the conditional basis was removed and they became full-fledged LPRs, these
restrictions would no longer have applied.
H.R. 1645
The Security Through Regularized Immigration and a Vibrant Economy Act of 2007, or the
STRIVE Act of 2007 (H.R. 1645), introduced by Representative Gutierrez for himself and a
bipartisan group of cosponsors, contained DREAM Act provisions in Title VI, Subtitle B. These
provisions were nearly identical to S. 774, as discussed above.
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H.R. 1221
The Education Access for Rightful Noncitizens (EARN) Act (H.R. 1221), introduced by
Representative Gillmor, was a version of the DREAM Act. It was similar in some ways to the
bills described above and significantly different in other respects. Like S. 774, H.R. 1275, and
H.R. 1645, it would have enabled eligible unauthorized students to adjust to LPR status in the
United States through the cancellation of removal procedure described above. Under H.R. 1221,
as under these other bills, aliens could have affirmatively applied for cancellation of removal
without being placed in removal proceedings, and there would have been no limit on the number
of aliens who could be granted cancellation of removal/adjustment of status as specified.
Many of the eligibility requirements for cancellation of removal/adjustment of status—including
the physical presence, age at entry, good moral character, and educational requirements—were
the same under H.R. 1221, S. 774, H.R. 1275, and H.R. 1645. There were differences, however,
with respect to the INA grounds of inadmissibility and deportability. Under H.R. 1221, as under
these other bills, aliens would have been ineligible for cancellation of removal/adjustment of
status if they were inadmissible or deportable on criminal, security, or smuggling grounds. They
also would have been ineligible under H.R. 1221 if they were inadmissible on other grounds,
including failure to attend a removal proceeding, or deportable on other grounds, including
marriage fraud. In addition, aliens would have been ineligible for cancellation of
removal/adjustment of status under H.R. 1221, as under S. 774 and H.R. 1645, if they had ever
been under a final administrative or judicial order of exclusion, deportation, or removal, with
some exceptions.
As under S. 774, H.R. 1275, and H.R. 1645, aliens granted cancellation of removal under H.R.
1221 would have been adjusted initially to a conditional permanent resident status, which would
have been valid for six years. To have the condition removed and become a full-fledged LPR, an
alien would have had to submit an application during a specified period and meet additional
requirements regarding good moral character, no abandonment of U.S. residence, and higher
education or military service, among others, as described above in the “S. 774 and H.R. 1275”
section.
At the same time, H.R. 1221 did not contain certain key provisions included in S. 774, H.R. 1275,
and H.R. 1645. Unlike these other bills, it would not have placed restrictions on the eligibility of
aliens who adjusted to LPR status under its terms, for federal student financial aid. Also unlike S.
774, H.R. 1275, and H.R. 1645, it would not have repealed IIRIRA §505 and thus would not have
eliminated the restriction on state provision of postsecondary educational benefits to unauthorized
aliens.
S. 1639
A version of the DREAM Act was included in a bipartisan comprehensive immigration reform
bill (S. 1639) introduced by Senator Kennedy for himself and Senator Specter. The DREAM Act
provisions comprised Title VI, Subtitle B, of S. 1639. The Senate failed to invoke cloture on the
measure in June 2007, and the bill was pulled from the Senate floor.
The S. 1639 version of the DREAM Act was substantially different than the other DREAM Act
bills in the 110th Congress. The DREAM Act provisions in S. 1639 were tied to other provisions
in Title VI of the bill that would have enabled certain unauthorized aliens in the United States to
obtain legal status under a new “Z” nonimmigrant visa category. Among the eligibility
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requirements for Z status, an alien would have had to be continuously physically present in the
United States since January 1, 2007, and could not have been lawfully present on that date under
any nonimmigrant classification or any other immigration status made available under a treaty or
other multinational agreement ratified by the Senate.21
S. 1639’s DREAM Act title would have established a special adjustment of status mechanism for
aliens who were determined to be eligible for, or who had been issued, probationary Z22 or Z
visas, and who met other requirements, including being under age 30 on the date of enactment,
being under age 16 at the time of initial entry into the United States, and having either acquired a
college degree (or completed at least two years in a bachelor’s or higher degree program) in the
United States or served in the uniformed services for at least two years. The Secretary of the
Department of Homeland Security could have begun adjusting the status of eligible individuals to
LPR status three years after the date of enactment.23 Unlike under the other DREAM Act bills
discussed above, DREAM Act beneficiaries under S. 1639 would not have adjusted status
through the cancellation of removal procedure and would not have been adjusted initially to
conditional permanent resident status.
In other respects, the DREAM Act adjustment of status provisions in S. 1639 were similar to
those in the other DREAM Act bills before the 110th Congress. As under the other bills, there
would have been no limit on the number of aliens who could have adjusted to LPR status under S.
1639. With respect to federal student financial aid, beneficiaries of the S. 1639 provisions, like
beneficiaries under S. 774 and H.R. 1645, would have been eligible for student loans, federal
work-study programs, and services (such as counseling, tutorial services, and mentoring), subject
to the applicable requirements, but would not have been eligible for grants.24
S. 1639, like most other DREAM Act bills before the 110th Congress, coupled adjustment of
status provisions for unauthorized students with provisions addressing IIRIRA §505, which, as
explained above, places restrictions on state provision of educational benefits to unauthorized
aliens. Unlike S. 774, H.R. 1275, and H.R. 1645, however, S. 1639 would not have completely
repealed IIRIRA §505. Instead, §616(a) of S. 1639 proposed to make §505 inapplicable with
respect to aliens with probationary Z or Z status.
S. 2205
Another version of the DREAM Act (S. 2205) was introduced in October 2007 by Senator
Durbin. It contained legalization provisions similar to those in S. 774, H.R. 1275, H.R. 1645, and
21 For further information about the proposed Z classifications, see CRS Report RL32044, Immigration: Policy
Considerations Related to Guest Worker Programs, by Andorra Bruno.
22 Under S. 1639 § 601, certain applicants for Z status would have been eligible to receive probationary benefits in the
form of employment authorization pending final adjudication of their applications.
23 Unlike Z aliens applying to adjust to LPR status under S. 1639 §602, beneficiaries of the DREAM Act provisions
would not have been subject to a “back of the line” provision requiring them to wait to adjust status until immigrant
visas became available to others whose petitions had been filed by a specified date. Under S. 1639 § 602(a)(5), a Z
alien could not adjust status to that of an LPR under §602 until 30 days after an immigrant visa became available for
approved family-based or employment-based petitions filed before May 1, 2005. For further information about the
permanent immigration system, see CRS Report RL32235, U.S. Immigration Policy on Permanent Admissions, by
Ruth Ellen Wasem.
24 Aliens in probationary Z or Z nonimmigrant status who met certain requirements similarly would have been eligible
for student loans, federal work-study programs, and services, but not grants.
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H.R. 1221. Under S. 2205, eligible unauthorized students could have adjusted to LPR status
through the cancellation of removal procedure. Aliens could have applied affirmatively for
cancellation of removal without being placed in removal proceedings, and there would have been
no limit on the number of aliens who could have been granted cancellation of removal/adjustment
of status as specified.
To be eligible for cancellation of removal/adjustment of status under S. 2205, an alien would have
had to demonstrate, among other requirements, that he or she had been physically present in the
United States for a continuous period of not less than five years immediately preceding the date
of enactment, had not yet reached age 16 at the time of initial entry, had been a person of good
moral character since the date of enactment, and had been admitted to an institution of higher
education in the United States or had earned a high school diploma or the equivalent in the United
States. In addition, in a requirement not in S. 774, H.R. 1275, H.R. 1221, or H.R. 1645 but
included in S. 1639, the alien would also have had to show that he or she was under age 30 on the
date of enactment. The eligibility requirements in S. 2205 with respect to the INA grounds of
inadmissibility and deportablity were similar to those in H.R. 1221, as discussed above. Also like
H.R. 1221 and most of the other DREAM Act bills before the 110th Congress, S. 2205 would have
made ineligible, aliens who had ever been under a final administrative or judicial order of
exclusion, deportation, or removal, with some exceptions.
An alien granted cancellation of removal under S. 2205 would have been adjusted initially to
conditional permanent resident status. To have the condition removed and become a full-fledged
LPR, the alien would have had to meet additional requirements, including acquisition of a college
degree (or completion of at least two years in a bachelor’s or higher degree program) or service in
the uniformed services for at least two years.
A key difference between S. 2205 on the one hand and S. 774, H.R. 1275, and H.R. 1645 on the
other was that S. 2205, like H.R. 1221, would not have repealed IIRIRA §505 and thus would not
have eliminated the restriction on state provision of postsecondary educational benefits to
unauthorized aliens. On October 24, 2007, the Senate voted on a motion to invoke cloture on S.
2205. The motion failed on a vote of 52 to 44.
Author Contact Information
Andorra Bruno
Specialist in Immigration Policy
abruno@crs.loc.gov, 7-7865
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