Unauthorized Alien Students: Issues and
“DREAM Act” Legislation
Andorra Bruno
Specialist in Immigration Policy
March 22, 2011
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
Supporters of comprehensive immigration reform have urged the President and Congress to
pursue reform legislation. While prospects for comprehensive reform—especially for proposals
including large-scale legalization of unauthorized aliens—may have dimmed since the November
2010 elections, some supporters are advocating passage of more limited legislation to address the
status of unauthorized alien students. Such legislation is commonly referred to as the “DREAM
Act.”
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 DREAM Act 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. While
there are other options for dealing with this population, this report deals exclusively with the
DREAM Act approach in light of the considerable congressional interest in it.
In the 111th Congress, the House approved DREAM Act language as part of an unrelated bill, the
Removal Clarification Act of 2010 (H.R. 5281). However, the Senate failed, on a 55-41 vote, to
invoke cloture on a motion to agree to the House-passed DREAM Act amendment and the bill
died at the end of the Congress. The House-approved language was the same as that in the stand-
alone Development, Relief, and Education for Alien Minors (DREAM) Act of 2010 (H.R. 6497)
and differed in key respects from earlier versions of the DREAM Act.
It is unclear whether the 112th Congress will take up DREAM Act legislation. 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
House-Approved DREAM Act Language and H.R. 6497....................................................... 4
H.R. 1751 ............................................................................................................................. 7
H.R. 6327 ............................................................................................................................. 8
S. 729 and S. 3827 ................................................................................................................ 9
S. 3962 and S. 3963 ............................................................................................................ 10
S. 3992 ............................................................................................................................... 11
Pro/Con Arguments................................................................................................................... 13
Appendixes
Appendix. Action in the 109th and 110th Congresses................................................................... 15
Contacts
Author Contact Information ...................................................................................................... 20
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Unauthorized Alien Students: Issues and “DREAM Act” Legislation
Introduction
The November 2008 election results sparked renewed interest in comprehensive immigration
reform—which encompasses highly controversial proposals for legalization of unauthorized
(illegal) aliens—among reform supporters. Although the 111th Congress did not take up
comprehensive immigration reform legislation, it did consider proposals, commonly referred to as
the “DREAM Act,” to enable unauthorized alien students to legalize their status. While still
controversial, such proposals for legalization 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.1 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)2
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.3
Multiple bills have been introduced in recent Congresses to provide relief to unauthorized alien
students. 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.
Prior to the 111th Congress, DREAM Act bills generally proposed to repeal the 1996 provision
and to enable certain unauthorized alien students to adjust to legal permanent resident (LPR)
status. In the 111th Congress, the House approved a different type of DREAM Act measure as part
of an unrelated bill, the Removal Clarification Act of 2010 (H.R. 5281). Unlike earlier DREAM
Act bills, the DREAM Act language in H.R. 5281 (which was the same as in stand-alone H.R.
6497) did not include a repeal of the 1996 provision and proposed to grant eligible individuals an
interim legal status prior to enabling them to adjust to LPR status. The Senate failed, on a 55-41
vote, to invoke cloture on a motion to agree to the House-passed DREAM Act amendment, and
H.R. 5281 died at the end of the Congress.
It seems likely that DREAM Act legislation of some type will be introduced in the 112th Congress
and that supporters will continue to push for passage. In the aftermath of the November 2010
elections, however, the prospects for consideration or enactment of any such DREAM Act bills
are unclear.
1 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.
2 IIRIRA is Division C of P.L. 104-208, September 30, 1996.
3 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.
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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 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 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 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 in 110th Congress). CIS put the number of
potential beneficiaries at 2.1 million based on the physical presence and age requirements in the
bill.4
In 2010, using data from the March 2006, March 2007, and March 2008 CPS and other sources,
the Migration Policy Institute (MPI) published estimates of the population potentially eligible for
legal status under S. 729, a Senate DREAM Act bill in the 111th Congress.5 This bill would have
established a two-stage process for unauthorized alien students to obtain LPR status. As detailed
below, aliens who met specified age, physical presence, educational, and other requirements
could have first applied for conditional LPR status. After meeting additional requirements,
including two years of either college or service in the uniformed services, they could have applied
to have the condition on their status removed and become full-fledged LPRs. According to the
MPI analysis, if this DREAM Act bill had been enacted, about 2.1 million individuals could have
attempted to become LPRs under its provisions. This total included estimates of individuals who,
on the date of enactment, would already have met the substantive requirements under the bill for
conditional status (or for both conditional status and the removal of the condition), as well as
estimates of individuals who, on the date of enactment, would have met some, but not all, of the
requirements for conditional status. The largest group in the latter category numbered some
934,000 (almost half the 2.1 million estimated total) and was composed of potential beneficiaries
who were children under age 18 in elementary or secondary school. The MPI report also included
an estimate of the number of individuals who would likely have obtained LPR status under S.
729, if it had been enacted:
If future behavior mirrors past trends, we project that approximately 38 percent [of the 2.1
million]—or 825,000—of the potential beneficiaries would actually achieve lawful
permanent status under the legislation.6
4 Center for Immigration Studies, “DREAM Act Offers Amnesty to 2.1 Million,” news release, October 23, 2007, at
http://www.cis.org.
5 Jeanne Batalova and Margie McHugh, DREAM vs. Reality: An Analysis of Potential DREAM Act Beneficiaries,
Migration Policy Institute, July 2010, http://www.migrationpolicy.org.
6 Ibid., p. 17.
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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.7 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.8 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.”9) 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 resident unauthorized students (and not
to all citizens) without violating §505. Various states have attempted to do this. For example, a
7 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 2010-2011, Volume 1 (Student Eligibility), Chapter 2
(Citizenship), at http://www.ifap.ed.gov/ifap.
8 No implementing regulations on §505 have been issued.
9 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.10 The measure, however, bases
eligibility on criteria that do not explicitly include state residency. The requirements to qualify for
in-state tuition under the California law include attendance at a California high school for at least
three years and either graduation from a California high school “or attainment of the equivalent
thereof.” In addition, the law requires an unauthorized alien student to file an affidavit stating that
he or she either 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, the law does not violate the §505 prohibition on conferring educational
benefits on the basis of state residency. In November 2010, the California Supreme Court upheld
the California law. Several federal courts also have considered whether state laws that authorize
in-state tuition for unauthorized students violate §505.11
Action in the 111th Congress
Senator Durbin and Representative Berman introduced DREAM Act bills in the 111th Congress.
Senator Durbin introduced the Development, Relief, and Education for Alien Minors (DREAM)
Act of 2009 (S. 729) and four versions of the Development, Relief, and Education for Alien
Minors (DREAM) Act of 2010 (S. 3827, S. 3962, S. 3963, S. 3992). Representative Berman
introduced the American Dream Act (H.R. 1751) and the Development, Relief, and Education for
Alien Minors (DREAM) Act of 2010 (H.R. 6497). Representative Djou introduced a related bill,
the Citizenship and Service Act of 2010 (H.R. 6327).
On December 8, 2010, the House approved DREAM Act language as part of an unrelated bill, the
Removal Clarification Act of 2010 (H.R. 5281). On December 18, 2010, the Senate failed to
invoke cloture on a motion to agree to the House-passed DREAM Act amendment. The vote on
the cloture motion was 55 to 41.12
House-Approved DREAM Act Language and H.R. 6497
The DREAM Act language approved by the House as part of H.R. 5281 was the same as the text
of the DREAM Act of 2010 (H.R. 6497), as introduced by Representative Berman, and was
similar to the DREAM Act of 2010 (S. 3992), as introduced by Senator Durbin. Like other
DREAM Act bills in the 111th Congress, the House-approved DREAM Act amendment to H.R.
5281 would have enabled eligible unauthorized students to adjust to LPR status in the United
States, although it would have established a different pathway than most of the other bills. Unlike
some other DREAM Act bills discussed below, the House-approved DREAM Act language
would not have repealed IIRIRA §505 and thus would not have eliminated the statutory
restriction on state provision of postsecondary educational benefits to unauthorized aliens (see
above).
10 Cal. Educ. Code § 68130.5. The law does not apply to the University of California system.
11 For additional information, see CRS Report RS22500, Unauthorized Alien Students, Higher Education, and In-State
Tuition Rates: A Legal Analysis.
12 In addition, on December 9, 2010, following House action on H.R. 5281, there was another DREAM Act-related
vote in the Senate. That day, the Senate voted, 59-40, to table a motion to proceed to a Senate DREAM Act bill, S.
3992. DREAM Act supporters voted for the tabling motion in an effort to clear the way for the Senate to consider the
House-approved DREAM Act amendment to H.R. 5281.
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Under the House-approved DREAM Act amendment to H.R. 5281, an eligible alien could have
gone though an immigration procedure known as cancellation of removal13 and been granted
conditional nonimmigrant status. Unlike under most other DREAM Act bills in the 111th
Congress, as discussed below, the alien’s status would not have been adjusted to that of a
conditional LPR. The House-approved version of the DREAM Act would have enabled an alien
to affirmatively apply for cancellation of removal without first being placed in removal
proceedings and also would have established a deadline for submitting initial cancellation of
removal applications.
To be eligible for cancellation of removal/conditional nonimmigrant status under the House-
approved DREAM Act amendment to H.R. 5281, an alien would have needed 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 of the legislation, had not yet reached age
16 at the time of initial entry, had been a person of good moral character since the date of initial
entry, and was younger than age 30 on the date of enactment. The alien also would have had 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, and that he or
she had never been under a final administrative or judicial order of exclusion, deportation, or
removal, with some exceptions.
Aliens applying for relief under the House-approved DREAM Act amendment to H.R. 5281, or
under any of the other DREAM Act bills in the 111th Congress, would have been 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.14 The INA similarly enumerates classes of deportable
aliens.15 The House-approved version of the DREAM Act specified the grounds of inadmissibility
and deportability that would have applied to aliens seeking relief. An alien applying for
cancellation of removal/conditional nonimmigrant status under the House-passed version would
have had to show that he or she was not inadmissible on INA health-related, criminal, security,
public charge, smuggling, student visa abuse, citizenship ineligibility, polygamy, international
child abduction, or unlawful voting grounds, and was not deportable on INA criminal, security,
smuggling, marriage fraud, public charge, or unlawful voting grounds.16 Applicants also would
have needed to satisfy requirements concerning convictions for offenses under federal or state
law. In addition, they would have had to submit biometric and biographic data, which would have
been used to conduct background checks, and would have needed to register under the Military
Selective Service Act, if applicable.
Aliens whose removal was cancelled under the House-approved DREAM Act amendment to H.R.
5281 would have been granted conditional nonimmigrant status. Such conditional status would
have been valid for an initial period of five years (compared to 10 years under S. 3992) and
13 Cancellation of removal is a discretionary form of relief under immigration law that an alien can apply for while in
removal proceedings before an immigration judge.
14 The INA grounds of inadmissibility are in INA §212(a).
15 The INA grounds of deportability are in INA §237(a).
16 The Secretary of Homeland Security would have had the authority to waive some of these grounds for humanitarian,
family unity, or public interest purposes.
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would have been subject to termination. An alien’s conditional nonimmigrant status would have
been extended for a second five-year period if the alien met the following requirements:
demonstration of good moral character as a conditional nonimmigrant; compliance with the bill’s
inadmissibility and deportability provisions discussed above; no abandonment of U.S. residence;
and either acquisition of a degree from an institution of higher education (or completion of at
least two years in a bachelor’s or higher degree program) in the United States, or service in the
Armed Forces17 for at least two years.
Unlike other DREAM Act bills in the 111th Congress, the House-approved DREAM Act
amendment to H.R. 5281 would have established surcharges on applications for relief. There
would have been a surcharge of $525 on each application for cancellation of removal/conditional
nonimmigrant status, and a surcharge of $2,000 on each application for an extension of
conditional nonimmigrant status.
At the end of the second period of conditional nonimmigrant status, as specified, the alien could
have applied for adjustment to LPR status. Among the requirements for adjustment of status, the
alien would have needed to have demonstrated good moral character during the period of
conditional nonimmigrant status; would have had to be in compliance with the bill’s
inadmissibility and deportability provisions; and could not have abandoned his or her U.S.
residence. In addition, applicants for adjustment of status under the House-approved version of
the DREAM Act would have needed to satisfy the English language and civic requirements for
naturalization, satisfy any applicable federal tax liability, submit biometric and biographic data,
and complete background checks. There would have been no limitation on the number of
individuals eligible for adjustment of status.
Aliens who adjusted status and met other requirements would have been eligible for
naturalization after three years in LPR status. Unlike under DREAM Act bills in the 111th
Congress that would have granted conditional LPR status, the time spent in conditional status
under the House-approved DREAM Act language (during which the aliens would have been
conditional nonimmigrants) would not have counted for naturalization purposes.
Like other DREAM Act bills in the 111th Congress, the House-approved DREAM Act amendment
to H.R. 5281 would have placed restrictions on the eligibility of aliens who adjusted status under
its provisions for federal student financial aid under Title IV of the Higher Education Act of 1965,
as amended. Aliens granted conditional nonimmigrant status or LPR status 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. Unlike other LPRs, they would
not have been eligible for federal Pell Grants or federal supplemental educational opportunity
grants.
The House-approved version of the DREAM Act also contained provisions on the treatment for
other purposes of aliens who were granted conditional nonimmigrant status or LPR status under
the bill. It provided that conditional nonimmigrants would have been considered lawfully present
for all purposes except for provisions in the Patient Protection and Affordable Care Act (PPACA),
as enacted by the 111th Congress,18 concerning premium tax credits and cost sharing subsidies.19 It
17 The term “Armed Forces, ” as defined in Section 101(a) of Title 10 of the U.S. Code, means the Army, Navy, Air
Force, Marine Corps, and Coast Guard.
18 P.L. 111-148, March 23, 2010.
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also provided that aliens who adjusted to LPR status under the bill would have been deemed to
have completed the five-year period required for LPR eligibility for certain types of federal public
assistance, as established by the Personal Responsibility and Work Opportunity Reconciliation
Act (PWORA) of 1996.20
H.R. 1751
The American Dream Act (H.R. 1751), as introduced by Representative Berman, would have
repealed IIRIRA §505 and thereby eliminated the restriction on state provision of postsecondary
educational benefits to unauthorized aliens. It likewise would have enabled eligible unauthorized
students to adjust to LPR status in the United States through the cancellation of removal
procedure. Under H.R. 1751, aliens could have applied for cancellation of removal without first
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.
To be eligible for cancellation of removal/adjustment of status under H.R. 1751, an 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; had been a person of good moral character
since the time of application; and was not inadmissible or deportable on INA criminal, security, or
smuggling grounds. The bill 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. Unlike under most other DREAM Act bills
in the 111th Congress, however, H.R. 1751 would not have required the alien to show that he or
she was under a particular age on the date of enactment. H.R. 1751 also provided for expedited
processing of applications without an additional fee.
Aliens granted cancellation of removal under H.R. 1751 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. The time an alien spent as a conditional LPR would
have counted for naturalization purposes. (Typically, an alien must be in LPR status for five years
before he or she can naturalize.) Under H.R. 1751, however, the condition on the LPR status
would have needed to be removed before the alien could apply for naturalization.
To have the condition removed and become a full-fledged LPR, an alien would have had 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 have needed either to
have earned a degree from an institution of higher education (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 services21 for at least two years.
(...continued)
19 For information on the PPACA provisions, see CRS Report R40942, Private Health Insurance Provisions in the
Patient Protection and Affordable Care Act (PPACA), by Hinda Chaikind, Bernadette Fernandez, and Mark Newsom.
20 For information on current eligibility policy, see CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview and Trends, by Ruth Ellen Wasem.
21 The term “uniformed services” is broader than “Armed Forces,” the term used in the House-approved DREAM Act
amendment to H.R. 5281. As defined in Section 101(a) of Title 10 of the U.S. Code, “uniformed services” means the
(continued...)
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H.R. 1751 would have placed 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 have been
eligible for student loans, federal work-study programs, and services, but they would not have
been eligible 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 and they would have
been eligible for grants. By contrast, under the House-approved version of the DREAM Act and
the various Senate bills, aliens who obtained full-fledged LPR status would have remained
ineligible for grants.
H.R. 6327
The Citizenship and Service Act of 2010 (H.R. 6327), introduced by Representative Djou, was
similar to H.R. 1751 in many respects but noticeably different than that bill in others. Like some
other DREAM Act bills but unlike H.R. 1751, H.R. 6327 would not have repealed IIRIRA §505.
In addition, unlike all the other DREAM Act bills in the 111th Congress discussed here, H.R. 6327
would have required eligible aliens to serve in the uniformed services for at least two years in
order to become full-fledged LPRs. Higher education would not have been an alternative to this
service requirement under H.R. 6327.
Like H.R. 1751, H.R. 6327 would have enabled eligible unauthorized students to adjust to LPR
status in the United States through the cancellation of removal procedure. Aliens could have
applied for cancellation of removal without first 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.
To be eligible for cancellation of removal/adjustment of status under H.R. 6327, an 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 had 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.
As under H.R. 1751, an alien applying for cancellation of removal/adjustment of status under
H.R. 6327 would have had to demonstrate that he or she was not inadmissible or deportable on
INA criminal, security, or smuggling grounds. Also like H.R. 1751, H.R. 6327 provided for
expedited processing of applications without an additional fee.
Aliens granted cancellation of removal under H.R. 6327, as under H.R. 1751, 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. The time an alien spent as a
(...continued)
Armed Forces (Army, Navy, Air Force, Marine Corps, and Coast Guard); the commissioned corps of the National
Oceanic and Atmospheric Administration; and the commissioned corps of the Public Health Service.
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conditional LPR would have counted for naturalization purposes, but the conditional basis would
have had to be removed before the alien could apply to naturalize.
To have the condition removed and become a full-fledged LPR, an alien would have had to apply
during a specified period and meet additional requirements. Among these requirements, the alien
would have had 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 to
have served in the uniformed services for at least two years. Unlike the other DREAM Act bills in
the 111th Congress, H.R. 6327 would not have offered conditional residents the option of
completing at least two years of higher education as an alternative to serving in the uniformed
services.
H.R. 6327, like H.R. 1751, would have placed 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 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.
S. 729 and S. 3827
S. 729, the DREAM Act of 2009, and S. 3827, the DREAM Act of 2010, were highly similar bills
introduced by Senator Durbin. Differences between S. 729 and S. 3827, as discussed below,
concerned the applicable grounds of inadmissibility and the application process under the bills.
Both S. 729 and S. 3827 would have repealed IIRIRA §505 and thereby eliminated the restriction
on state provision of postsecondary educational benefits to unauthorized aliens. They also would
have enabled eligible unauthorized students to adjust to LPR status in the United States through
cancellation of removal. S. 729 and S. 3827 would have enabled aliens to affirmatively apply for
cancellation of removal without first being placed in removal proceedings, and they would have
placed 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 and S. 3827, an 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 of the
act; 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 had not yet reached age 35 on the date of enactment.
The alien also would have had 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.
Under both bills, the alien could not have been inadmissible on INA criminal, security,
smuggling, or international child abduction grounds and could not have been deportable on INA
criminal, security, or smuggling grounds; S. 3827 also would have made applicable the INA
ground of inadmissibility barring practicing polygamists. In addition, under both bills, the alien
would have had to show that he or she had never been under a final administrative or judicial
order of exclusion, deportation, or removal, with some exceptions.
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S. 729 and S. 3827 included some different language concerning the application process. S. 729
included a provision, not included in S. 3827, to consider applications on an expedited basis
without charging an additional fee. S. 3827 included a provision, not included in S. 729,
establishing a deadline for submitting initial cancellation of removal/adjustment of status
applications.
Aliens granted cancellation of removal under S. 729 or S. 3827 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 have
demonstrated 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 to have earned a
degree from an institution of higher education (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.
The time an alien spent as a conditional LPR would have counted for naturalization purposes
under S. 729 and S. 3827. Typically, an alien must be in LPR status for five years before he or she
can naturalize. Under both bills, however, the condition on the LPR status would have to have
been removed before an alien could apply for naturalization.
S. 729 and S. 3827 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. Aliens adjusting status under S. 729 or S. 3827 would have
been 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 have been ineligible for federal Pell Grants or federal supplemental educational
opportunity grants.
S. 3962 and S. 3963
S. 3962 and S. 3963 were two highly similar versions of the DREAM Act of 2010, introduced by
Senator Durbin in the 111th Congress. They were also similar to S. 3827, another version of the
DREAM Act of 2010, which is discussed above. The main difference between S. 3962 and S.
3963 on the one hand and S. 3827 on the other was that the former bills would not have repealed
IIRIRA §505 and thus would not have eliminated the statutory restriction on state provision of
postsecondary educational benefits to unauthorized aliens. As discussed below, S. 3962 and S.
3963 differed from one another with respect to the cutoff age for eligibility for cancellation of
removal/adjustment of status.
S. 3962 and S. 3963 would have enabled eligible unauthorized students to adjust to LPR status in
the United States through cancellation of removal. Both bills would have enabled aliens to
affirmatively apply for cancellation of removal without first being placed in removal proceedings,
and they would have placed no limit on the number of aliens who could be granted cancellation
of removal/ adjustment of status. There would have been a deadline for submitting initial
cancellation of removal/ adjustment of status applications.
To be eligible for cancellation of removal/adjustment of status under S. 3962 and S. 3963, an
alien would have had to demonstrate that he or she had been physically present in the United
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States for a continuous period of not less than five years immediately preceding the date of
enactment of the act, 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 included an eligibility
requirement concerning the age of the alien on the date of enactment of the legislation. Under S.
3962, the alien would have had to demonstrate that he or she had not yet reached age 35 on the
date of enactment. Under S. 3963, the alien would have had to demonstrate that he or she had not
yet reached age 30 on the date of enactment. Under both bills, the alien also would have had 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.
As under S. 3827, an alien applying for relief under S. 3962 and S. 3963 would have had to show
that he or she was not inadmissible on INA criminal, security, smuggling, polygamy, or
international child abduction grounds, and was not deportable on INA criminal, security, or
smuggling grounds. The alien also would have had 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. 3962 or S. 3963 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. The time an alien spent as a conditional
LPR would have counted for naturalization purposes, but the conditional basis would have had to
be removed before the alien could apply to naturalize.
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 have demonstrated 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 to have earned a degree from an institution of higher education (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. 3962 and S. 3963 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. Under that act, LPRs and certain other eligible noncitizens
may receive federal student financial aid. Aliens adjusting status under S. 3962 or S. 3963,
however, would have been 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 not have been eligible for federal Pell Grants or
federal supplemental educational opportunity grants.
S. 3992
S. 3992, another version of the DREAM Act of 2010 introduced by Senator Durbin, would, like
the other DREAM Act bills in the 111th Congress, have enabled eligible unauthorized students to
adjust to LPR status in the United States. Its legalization provisions were similar to those in the
House-approved DREAM Act amendment to H.R. 5281, although there were some differences
between the measures, as discussed below. Also like the House-approved amendment, S. 3992
would not have repealed IIRIRA §505 and thus would not have eliminated the statutory
restriction on state provision of postsecondary educational benefits to unauthorized aliens.
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Under S. 3992, as under the House-approved DREAM Act amendment to H.R. 5281, an eligible
alien could have gone though the cancellation of removal procedure and been granted conditional
nonimmigrant status. An alien could have affirmatively applied for cancellation of removal
without first being placed in removal proceedings, and there would have been a deadline for
submitting initial cancellation of removal applications. There would have been no limit on the
number of aliens who could be granted cancellation of removal under S. 3992.
To be eligible for cancellation of removal/conditional nonimmigrant status under S. 3992, an
alien would have had to meet requirements similar to those in the House-approved version of the
DREAM Act. 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 of the legislation, had not yet reached age 16 at the time of initial entry, had
been a person of good moral character since the date of initial entry, and was younger than age 30
on the date of enactment. The alien also would have had 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, and that he or she had never been under a final
administrative or judicial order of exclusion, deportation, or removal, with some exceptions.
Unlike under the House-approved DREAM Act amendment to H.R. 5281, there would have been
no surcharges on applications under S. 3992.
The same grounds of inadmissibility and deportability would have applied under S. 3992 as under
the House-approved DREAM Act language. An alien applying for relief under this bill would
have had to show that he or she was not inadmissible on INA health-related, criminal, security,
public charge, smuggling, student visa abuse, citizenship ineligibility, polygamy, international
child abduction, or unlawful voting grounds, and was not deportable on INA criminal, security,
smuggling, marriage fraud, public charge, or unlawful voting grounds.22 Applicants would further
have needed to satisfy requirements concerning convictions for offenses under federal or state
law; submit biometric and biographic data, which would have been used to conduct background
checks; and register under the Military Selective Service Act, if applicable.
Aliens whose removal was cancelled under S. 3992 would have been granted conditional
nonimmigrant status. Such conditional status would have been valid for 10 years (compared to
H.R. 5281’s initial period of five years, which could have been extended for a second five-year
period) and would have been subject to termination.
For adjustment to LPR status, the conditional nonimmigrant would have had to submit an
application during a specified period and meet requirements similar to those in other DREAM Act
bills. Among these requirements, the alien would have needed to have demonstrated good moral
character during the period of conditional nonimmigrant status; could not have abandoned his or
her U.S. residence; and would have needed either to have earned a degree from an institution of
higher education (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 Armed Forces for at least two years. Other
requirements included satisfaction of the English language and civic requirements for
naturalization, payment of federal taxes, submission of biometric and biographic data, and
completion of background checks. There would have been no limitation on the number of
individuals eligible for adjustment of status under S. 3992.
22 The Secretary of Homeland Security would have the authority to waive some of these grounds for humanitarian,
family unity, or public interest purposes.
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Aliens who adjusted status under S. 3992 and met other requirements would have been eligible
for naturalization after three years in LPR status. The time spent in conditional status under S.
3992, as under the House-approved DREAM Act amendment to H.R. 5281 (during which the
aliens would have been conditional nonimmigrants as opposed to conditional LPRs under the
other DREAM Act bills), would not have counted for naturalization purposes.
Like the House-approved DREAM Act amendment to H.R. 5281, S. 3992 would have placed
restrictions on the eligibility of aliens who adjusted status under its provisions for federal student
financial aid under Title IV of the Higher Education Act of 1965, as amended. Aliens granted
conditional nonimmigrant status or LPR status under S. 3992 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. Unlike other LPRs, they would not have
been eligible for federal Pell Grants or federal supplemental educational opportunity grants.
S. 3992 also contained provisions like those in the House-approved DREAM Act amendment to
H.R. 5281 on the treatment for other purposes of aliens who were granted conditional
nonimmigrant status or LPR status under the bill. It provided that conditional nonimmigrants
would have been considered lawfully present for all purposes except for provisions in the Patient
Protection and Affordable Care Act (PPACA), as enacted by the 111th Congress,23 concerning
premium tax credits and cost sharing subsidies.24 It also provided that aliens who adjusted to LPR
status under the bill would have been deemed to have completed the five-year period required for
LPR eligibility for certain types of federal public assistance, as established by the Personal
Responsibility and Work Opportunity Reconciliation Act (PWORA) of 1996.25
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.
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
23 P.L. 111-148, March 23, 2010.
24 For information on the PPACA provisions, see CRS Report R40942, Private Health Insurance Provisions in the
Patient Protection and Affordable Care Act (PPACA).
25 For information on current eligibility policy, see CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview and Trends.
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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.26
26 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.27
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
27 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 was 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 service in the uniformed services, 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.28
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 Z29 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.30 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.31
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
28 For further information about the proposed Z classifications, see CRS Report RL32044, Immigration: Policy
Considerations Related to Guest Worker Programs, by Andorra Bruno.
29 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.
30 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.
31 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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Unauthorized Alien Students: Issues and “DREAM Act” Legislation
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 be 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 deportability 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
Congressional Research Service
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