Unauthorized Alien Students:
Issues and “DREAM Act” Legislation
Andorra Bruno
Specialist in Immigration Policy
February 27, 2013
Congressional Research Service
7-5700
www.crs.gov
RL33863
CRS Report for Congress
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epared for Members and Committees of Congress
Unauthorized Alien Students: Issues and “DREAM Act” Legislation
Summary
The 2012 presidential election results reignited interest in comprehensive immigration reform
generally and in legislation known as the “DREAM Act,” in particular. DREAM Act legislation
would enable certain unauthorized aliens to legalize their status. The name DREAM Act derives
from the bill title, Development, Relief, and Education for Alien Minors Act, but it refers more
broadly to measures to provide immigration relief to unauthorized students, whether or not
particular bills carry that name. DREAM Act proposals to provide relief to unauthorized aliens
who were brought, as children, to live in the United States by their parents or other adults have
been controversial in recent years, but historically they have enjoyed a broad base of support in
Congress.
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 typically 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 differed in key respects from
earlier versions of the DREAM Act. Bills to legalize the status of unauthorized alien students (S.
952, H.R. 1842, H.R. 3823, H.R. 5869) were again introduced in the 112th Congress.
On June 15, 2012, in the absence of congressional action on DREAM Act legislation, the Obama
Administration announced that certain individuals who were brought to the United States as
children and meet other criteria would be considered for relief from removal. Under a
memorandum issued by Secretary of Homeland Security Janet Napolitano on that date, these
individuals would be eligible for deferred action for two years, subject to renewal, and could
apply for employment authorization. DHS began accepting requests for consideration of deferred
action for childhood arrivals (or DACA, as the program is known) in August 2012.
DREAM Act legislation may be taken up in the 113th Congress. It may be considered as part of a
comprehensive immigration reform bill or as a separate, stand-alone measure. As of this writing,
no DREAM Act bills have been introduced in the 113th Congress.
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Contents
Introduction ...................................................................................................................................... 1
Higher Education Benefits and Immigration Status ........................................................................ 2
1996 Provision ................................................................................................................................. 2
Action in the 112th Congress ............................................................................................................ 3
S. 952 ......................................................................................................................................... 3
H.R. 1842................................................................................................................................... 5
H.R. 3823................................................................................................................................... 7
H.R. 5869................................................................................................................................... 9
Deferred Action for Childhood Arrivals (DACA) ......................................................................... 11
Estimates of Potential DREAM Act Beneficiaries ........................................................................ 12
Estimates of Potential DACA Beneficiaries ............................................................................ 13
Concluding Observations ............................................................................................................... 13
Appendixes
Appendix. Action in the 109th, 110th, and 111th Congresses ........................................................... 15
Contacts
Author Contact Information........................................................................................................... 29
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Unauthorized Alien Students: Issues and “DREAM Act” Legislation
Introduction
The 2012 presidential election results reignited interest in comprehensive immigration reform
generally and in legislation known as the “DREAM Act,” in particular. While comprehensive
immigration reform proposals have typically included large-scale legalization programs, DREAM
Act proposals have focused more narrowly on enabling certain unauthorized students to obtain
legal immigration status.1 The name DREAM Act derives from the bill title, Development, Relief,
and Education for Alien Minors Act, but it refers more broadly to measures to provide
immigration relief to unauthorized alien students, whether or not particular bills carry that name.
DREAM Act proposals have been controversial in recent years, but historically they have enjoyed
a broad base of support in Congress.
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 typically are unable to work
legally and are subject to removal from the United States.4
Multiple bills have been introduced in recent Congresses to provide relief to unauthorized aliens
who were brought into the United States as children. 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, in December
2010, 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 in the
111th Congress) 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 111th Congress.
Bills to legalize the status of unauthorized alien students (S. 952, H.R. 1842, H.R. 3823, H.R.
5869) were again introduced in the 112th Congress. S. 952 and H.R. 1842 took a step back from
some of the revisions incorporated in the DREAM Act measure approved by the House in the
111th Congress and included some more traditional DREAM Act provisions. By contrast, H.R.
1 This report generally describes beneficiaries of the DREAM Act as “students” as a convenient shorthand, following
common practice. As a technical matter, however, an individual would not have to be a currently enrolled student in
order to be granted immigration relief under the DREAM Act. The eligibility requirements under the various DREAM
Act proposals are detailed in this report.
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.
3 IIRIRA is Division C of P.L. 104-208, September 30, 1996. The provision is §505.
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.
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3823 and H.R. 5869 included many of the same provisions as the House-approved measure, but
were more restrictive in some respects.
DREAM Act legislation may be taken up in the 113th Congress. It may be considered as part of a
comprehensive immigration reform bill or as a separate, stand-alone measure. As of this writing,
no DREAM Act bills have been introduced in the 113th Congress.
Higher Education Benefits and Immigration Status
Under federal law, unauthorized aliens are neither entitled to nor prohibited from admission to
postsecondary educational institutions in the United States. State laws vary and may prohibit
enrollment in public postsecondary institutions. To gain entrance to available institutions,
unauthorized aliens 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.5 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 rates.
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.6 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.”7) Some
5 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 2011-2012, Volume 1 (Student Eligibility), Chapter 2
(Citizenship), http://ifap.ed.gov/fsahandbook/attachments/1112FSAHbkVol1Ch2.pdf.
6 No implementing regulations on §505 have been issued.
7 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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observers have argued that Congress exceeded its authority in §505 by legislating on how states
can dispense state benefits.8
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
California law passed in 2001 makes unauthorized aliens eligible for in-state tuition at state
community colleges and California State University campuses.9 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. At least one federal court also has considered whether state laws that authorize
in-state tuition for unauthorized students violate §505.10
Action in the 112th Congress
Similar, but not identical, Senate and House DREAM Act bills (S. 952, H.R. 1842) were
introduced in the 112th Congress. Although there were differences between the bills, both were
entitled the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011. Both
likewise took a step back from some of the revisions incorporated in the DREAM Act measure
approved by the House in the 111th Congress11 and, as discussed below, included some more
traditional DREAM Act provisions. By contrast, other House bills (H.R. 3823, H.R. 5869) more
closely resembled the version of the DREAM Act approved by the House in 2010.
S. 952
S. 952, the DREAM Act of 2011, was introduced by Senator Durbin with 32 original cosponsors.
It would have repealed IIRIRA §505 and thereby eliminated the restriction on state provision of
postsecondary educational benefits to unauthorized aliens. It also would have enabled eligible
unauthorized students (including those in temporary protected status under the INA12) to adjust to
8 See, for example, Dawn Konet, “Unauthorized Youths and Higher Education: The Ongoing Debate,” Migration
Information Source, Migration Policy Institute, September 2007, http://www.migrationinformation.org/Feature/
display.cfm?ID=642.
9 Cal. Educ. Code §68130.5. The law does not apply to the University of California system.
10 For additional information, see CRS Report RS22500, Unauthorized Alien Students, Higher Education, and In-State
Tuition Rates: A Legal Analysis.
11 See description of House-approved DREAM Act Language and H.R. 6497 in “Legislation in the 111th Congress” in
Appendix.
12 As set forth in INA §244, TPS is blanket relief that may be granted under the following conditions: there is ongoing
armed conflict posing serious threat to personal safety; a foreign state requests TPS because it temporarily cannot
(continued...)
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LPR status in the United States through an immigration procedure known as cancellation of
removal. 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. 952 would have enabled aliens to affirmatively
apply for cancellation of removal without first being placed in removal proceedings, and it would
have placed no limit on the number of aliens who could be granted cancellation of
removal/adjustment of status under its provisions.
To be eligible for cancellation of removal/adjustment of status under S. 952, an alien would have
had to demonstrate that he or she: had been continuously physically present in the United States
for five years immediately preceding the date of enactment of the act; was age 15 or younger at
the time of initial entry; had been a person of good moral character since the time of initial entry;
and was age 35 or younger on the date of enactment. The alien also would have needed 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.
Aliens applying for relief under S. 952 would have been subject to special requirements
concerning inadmissibility. The INA enumerates classes of inadmissible 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.13 S. 952
would have specified the grounds of inadmissibility applicable to aliens seeking relief.14 An alien
applying for cancellation of removal/adjustment of status under S. 952 would have had to show
that he or she was not inadmissible on INA criminal, security, smuggling, student visa abuse,
citizenship ineligibility, polygamy, international child abduction, or unlawful voting grounds.15
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.
S. 952 would have required that applications for cancellation of removal/adjustment of status be
filed not later than one year after the date the alien earned a high school diploma or the
equivalent, or the effective date of final regulations, whichever was later. Under the bill, the
Secretary of Homeland Security or the Attorney General could not have removed an alien with a
pending application who established prima facie eligibility for relief. In addition, the Attorney
General would have stayed the removal proceedings of an alien who was at least age five,16 met
(...continued)
handle the return of nationals due to environmental disaster; or there are extraordinary and temporary conditions in a
foreign state that prevent aliens from returning, provided that granting TPS is consistent with U.S. national interests.
See CRS Report RS20844, Temporary Protected Status: Current Immigration Policy and Issues, by Ruth Ellen Wasem
and Karma Ester.
13 The INA grounds of inadmissibility are in INA §212(a). See CRS Report R41104, Immigration Visa Issuances and
Grounds for Exclusion: Policy and Trends, by Ruth Ellen Wasem.
14 Unlike DREAM Act bills in prior Congresses, S. 952 did not specify grounds of deportability that would have
applied to aliens seeking relief. The INA grounds of deportability are in INA §237(a).
15 The Secretary of Homeland Security would have had the authority to waive specified grounds for humanitarian,
family unity, or public interest purposes.
16 This age five cutoff was a departure from past DREAM Act bills, which typically had limited protections from
removal to potential beneficiaries who were at least age 12.
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all the eligibility requirements except high school graduation, and was enrolled in primary or
secondary school.
Aliens granted cancellation of removal under S. 952 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
services17 for at least two years. Other requirements for removal of the condition would have
included satisfaction of the English language and civics requirements for naturalization,
submission of biometric and biographic data, and completion of background checks.
The time an alien spent as a conditional LPR would have counted for naturalization purposes
under S. 952. Typically, an alien must be in LPR status for five years before he or she can
naturalize. Under S. 952, however, the condition on the LPR status would have had to be
removed before an alien could apply for naturalization.
S. 952 would have placed restrictions on the eligibility of aliens who had conditional LPR status
under the bill for federal student financial aid under Title IV of the Higher Education Act of 1965,
as amended. Aliens with conditional LPR status 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. They would have been ineligible for federal Pell Grants or
federal supplemental educational opportunity grants.
H.R. 1842
H.R. 1842, the DREAM Act of 2011, was introduced by Representative Berman with bipartisan
cosponsorship. It was similar in many respects to S. 952, but different in some areas. Like the
Senate bill, it would have repealed IIRIRA §505 and thereby eliminated the restriction on state
provision of postsecondary educational benefits to unauthorized aliens. It also would have
enabled eligible unauthorized students to adjust to LPR status in the United States through
cancellation of removal. Unlike S. 952, it would not have provided for adjustment to LPR status
for aliens in temporary protected status. Like S. 952, it would have enabled aliens to affirmatively
apply for cancellation of removal without first being placed in removal proceedings, and it would
have placed no limit on the number of aliens who could be granted cancellation of
removal/adjustment of status.
H.R. 1842 included many of the same requirements as S. 952 for cancellation of removal/
adjustment of status. Under the House bill, as under the Senate bill, an alien would have needed
to demonstrate that he or she: had been continuously physically present in the United States for
not less than five years immediately preceding the date of enactment of the act; was age 15 or
17 As defined in Section 101(a) of Title 10 of the U.S. Code, the term uniformed services means the 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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younger at the time of initial entry; had been a person of good moral character since the time of
initial entry; 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. Under H.R. 1842, the
alien would have needed to demonstrate that he or she was age 32 or younger on the date of
enactment, compared to age 35 or younger under the Senate bill.
With respect to the INA grounds of inadmissibility, an alien applying for relief under H.R. 1842,
as under S. 952, would have had to show that he or she was not inadmissible on INA criminal,
security, smuggling, student visa abuse, citizenship ineligibility, polygamy, international child
abduction, or unlawful voting grounds.18 An additional ground of inadmissibility—the public
charge ground—would have applied under the House bill. As under S. 952, applicants for relief
under H.R. 1842 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. They would not have been subject to requirements like those
in S. 952 related to convictions for offenses under federal or state law.
The provisions in H.R. 1842 concerning the application process and protection from removal for
potential beneficiaries were very similar to those in S. 952. Like S. 952, the House bill would
have required that applications be filed not later than one year after the date the alien earned a
high school diploma or the equivalent, or the effective date of final regulations, whichever was
later. Under the House bill, the Secretary of Homeland Security or the Attorney General could not
have removed an alien with a pending application who established prima facie eligibility for
relief. In addition, the Attorney General would have stayed the removal proceedings of an alien
who was at least age 12 (compared to the age five cutoff in S. 952), met all the eligibility
requirements except high school graduation, and was enrolled in primary or secondary school.
Aliens granted cancellation of removal under H.R. 1842, as under S. 952, 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. Other requirements for removal of the condition
would have included satisfaction of the English language and civics requirements for
naturalization, submission of biometric and biographic data, and completion of background
checks. The time an alien spent as a conditional LPR would have counted for naturalization
purposes under H.R. 1842, but the condition on the LPR status would have had to be removed
before an alien could apply for naturalization.
H.R. 1842 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 who were in conditional
permanent resident status would have been eligible for student loans, federal work-study
18 The Secretary of Homeland Security would have had the authority to waive the criminal grounds for humanitarian,
family unity, or public interest purposes.
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programs, and services, but they would not have been eligible for federal Pell Grants and federal
supplemental educational opportunity grants.
H.R. 3823
H.R. 3823, the Adjusted Residency for Military Service (ARMS) Act, was introduced by
Representative Rivera. As mentioned above, it was similar in many respects to the DREAM Act
language approved by the House as part of H.R. 5281 in the 111th Congress,19 and it was
significantly different than S. 952 and H.R. 1842. Unlike S. 952 and H.R. 1842, H.R. 3823 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. Unlike S. 952, H.R.
1842, and the House-approved measure in the 111th Congress, H.R. 3823 would have required
unauthorized alien students to perform military service in order to obtain LPR status.
Under H.R. 3823, as under the House-approved DREAM Act language in the 111th Congress, an
eligible alien could have gone through the cancellation of removal procedure and been granted
conditional nonimmigrant status. Unlike under S. 952, H.R. 1842, and most other DREAM Act
bills introduced in past Congresses, the alien’s status would not have been adjusted to that of a
conditional LPR.
Like most other DREAM Act bills, H.R. 3823 would have enabled an alien to affirmatively apply
for cancellation of removal without first being placed in removal proceedings; would have
established a deadline for submitting initial cancellation of removal applications; and would have
prohibited the Secretary of Homeland Security from removing an alien with a pending application
who established prima facie eligibility for relief. Unlike other DREAM Act bills, H.R. 3823 did
not include provisions about staying the removal proceedings of alien children who were enrolled
in primary or secondary school and who met all the eligibility requirements for initial conditional
status except high school graduation.
To be eligible for cancellation of removal/conditional nonimmigrant status under H.R. 3823, 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. These requirements were the same as in S. 952 and H.R. 1842 except for the
maximum age limitation on the date of enactment.20 Under H.R. 3823, 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 both S. 952 and H.R. 1842, and that he or she had never been under a final administrative
or judicial order of exclusion, deportation, or removal, with some exceptions.
H.R. 3823 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 bill would have had to show that he or she was not inadmissible on INA health-
19 See description of House-approved DREAM Act Language and H.R. 6497 in “Legislation in the 111th Congress” in
the Appendix.
20 Under H.R. 1842, an alien would have had to be age 32 or younger; under S. 952, an alien would have had to be age
35 or younger.
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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.21
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.
As noted above, an alien whose removal was cancelled under H.R. 3823 would have been granted
conditional nonimmigrant status, as opposed to conditional LPR status under S. 952 and H.R.
1842. Such conditional nonimmigrant status would have been valid for an initial period of five
years and would have been subject to termination. Among the grounds for termination would
have been failure to successfully enlist in the Armed Forces22 within nine months after being
granted conditional status.
Under H.R. 3823, an alien’s conditional nonimmigrant status would have been extended for a
second five-year period (for a total conditional period of 10 years) 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 service in the Armed Forces on active duty for at least two years or service in
a reserve component of the Armed Forces in active status for at least four years.
By comparison, under the House-approved measure in the 111th Congress, there also would have
been two five-year conditional nonimmigrant status periods and beneficiaries would have had to
meet a set of requirements to have their status extended for the second five-year period. With
respect to the requirements for extension, however, the House-approved measure included
different military service requirements than H.R. 3823 and, unlike that bill, would have given
beneficiaries the option of completing two years of higher education instead of serving in the
Armed Forces.
Another similarity to the DREAM Act language approved in the 111th Congress, and a difference
from S. 952, H.R. 1842, and other DREAM Act bills, was that H.R. 3823 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 needed 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 H.R. 3823, as under the House-
approved version of the DREAM Act in the 111th Congress, would have needed to satisfy the
English language and civic requirements for naturalization, satisfy any applicable federal tax
21 The Secretary of Homeland Security would have had the authority to waive some of these grounds of inadmissibility
and deportability for humanitarian, family unity, or public interest purposes.
22 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.
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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.
Under H.R. 3823, aliens who adjusted status and met other requirements would have been
eligible for naturalization after three years in LPR status. Unlike under S. 952 and H.R. 1842, the
time spent in conditional status under H.R. 3823 (during which the aliens would have been
conditional nonimmigrants) would not have counted for naturalization purposes.
H.R. 3823 also contained provisions on the treatment for other purposes of aliens who were
granted conditional nonimmigrant status or LPR status under the bill. Like the version of the
DREAM Act approved by the 111th Congress, H.R. 3823 would have provided that conditional
nonimmigrants be 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 would have provided that aliens who
adjusted to LPR status under the bill be 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 H.R. 3823
contained no provisions on the eligibility of aliens who were granted relief under its provisions
for federal student financial aid.
H.R. 5869
H.R. 5869, the Studying Towards Adjusted Residency Status (STARS) Act, was also introduced
by Representative Rivera. It was a counterpart bill to H.R. 3823 (discussed above) in that it would
have provided a pathway to LPR status through higher education, while H.R. 3823 would have
provided a pathway through military service. H.R. 5869, like H.R. 3823, was similar in many
respects to the DREAM Act language approved by the House as part of H.R. 5281 in the 111th
Congress,26 and it was significantly different than S. 952 and H.R. 1842. Like H.R. 3823 and the
DREAM Act language approved by the House in the 111th Congress, H.R. 5869 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.
Under H.R. 5869, as under H.R. 3823 and the House-approved DREAM Act language in the 111th
Congress, an eligible alien could have gone through the cancellation of removal procedure and
been granted conditional nonimmigrant status. Unlike under S. 952, H.R. 1842, and most other
DREAM Act bills introduced in past Congresses, the alien’s status would not have been adjusted
to that of a conditional LPR.
Like most other DREAM Act bills, H.R. 5869 would have enabled an alien to affirmatively apply
for cancellation of removal without first being placed in removal proceedings and would have
prohibited the Secretary of Homeland Security from removing an alien with a pending application
23 P.L. 111-148, March 23, 2010.
24 For information on the PPACA provisions, see CRS Report R41714, Treatment of Noncitizens Under the Patient
Protection and Affordable Care Act, by Alison Siskin.
25 For information on current eligibility policy, see CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview and Trends, by Ruth Ellen Wasem.
26 See description of House-approved DREAM Act Language and H.R. 6497 in “Legislation in the 111th Congress” in
the Appendix.
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who established prima facie eligibility for relief. Unlike some other DREAM Act bills, H.R. 5869
did not include provisions about staying the removal proceedings of alien children who were
enrolled in primary or secondary school and who met all the eligibility requirements for initial
conditional status except high school graduation.
To be eligible for cancellation of removal/conditional nonimmigrant status under H.R. 5869, 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 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. These requirements were the same as in S. 952 and H.R. 1842, except for the
maximum age limitation on the date of enactment.27
The educational requirements for conditional status in H.R. 5869, however, were different than in
these bills and in other traditional DREAM Act bills. Under H.R. 5869, the applicant would have
had to demonstrate that he or she had earned a high school diploma or the equivalent in the
United States, and had been admitted to an accredited four-year institution of higher education in
the United States. In addition, as under H.R. 3823, the alien would have had to demonstrate that
he or she had never been under a final administrative or judicial order of exclusion, deportation,
or removal, with some exceptions.
H.R. 5869 specified the grounds of inadmissibility and deportability that would have applied to
aliens seeking relief. They were the same grounds as under H.R. 3823. An alien applying for
cancellation of removal/conditional nonimmigrant status under H.R. 5869 would have 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.28 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 they would have needed to register under the Military Selective
Service Act, if applicable.
As noted above, an alien whose removal was cancelled under H.R. 5869 would have been granted
conditional nonimmigrant status, as opposed to conditional LPR status under traditional DREAM
Act bills. Such conditional nonimmigrant status would have been valid for an initial period of five
years and would have been subject to termination. Among the grounds for termination would
have been failure to enroll in an accredited four-year institution within one year after being
granted conditional status or failure to remain enrolled in such an institution.
Under H.R. 5869, an alien’s conditional nonimmigrant status would have be extended for a
second five-year period (for a total conditional period of 10 years) 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
27 Under H.R. 1842, an alien would have had to be age 32 or younger; under S. 952, an alien would have had to be age
35 or younger.
28 The Secretary of Homeland Security would have had the authority to waive some of these grounds of inadmissibility
and deportability for humanitarian, family unity, or public interest purposes.
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U.S. residence; and graduation from an accredited four-year institution of higher education in the
United States.
Like H.R. 3823, H.R. 5869 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 were
demonstration of good moral character during the period of conditional nonimmigrant status,
compliance with the bill’s inadmissibility and deportability provisions, and no abandonment of
the alien’s U.S. residence. In addition, applicants for adjustment of status under H.R. 5869, as
under the House-approved version of the DREAM Act in the 111th Congress, 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. Under H.R. 5869, as under H.R. 3823, aliens who adjusted status and met other
requirements would have been eligible for naturalization after three years in LPR status.
H.R. 5869 also contained provisions on the treatment for other purposes of aliens granted
conditional nonimmigrant status or LPR status under the bill. Like the version of the DREAM Act
approved by the House in the 111th Congress, H.R. 5869 would have provided that conditional
nonimmigrants were to be considered lawfully present for all purposes except for provisions in
the Patient Protection and Affordable Care Act (PPACA), as enacted by the 111th Congress,29
concerning premium tax credits and cost sharing subsidies.30 It also would have provided that
aliens who adjusted to LPR status under the bill be 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 1996.31
Unlike other DREAM Act bills that offered a higher education route to LPR status, H.R. 5869
contained no provisions on the eligibility of aliens who were granted relief under its provisions
for federal student financial aid.
Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, in the absence of congressional action on DREAM Act bills, DHS issued a
memorandum32 announcing that certain individuals who were brought to the United States as
29 P.L. 111-148, March 23, 2010.
30 For information on the PPACA provisions, see CRS Report R41714, Treatment of Noncitizens Under the Patient
Protection and Affordable Care Act, by Alison Siskin.
31 For information on current eligibility policy, see CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview and Trends, by Ruth Ellen Wasem.
32 U.S. Department of Homeland Security, Memorandum to David V. Aguilar, Acting Commissioner, U.S. Customs
and Border Protection, Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, John Morton,
Director, U.S. Immigration and Customs Enforcement, from Janet Napolitano, Secretary of Homeland Security,
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15,
2012, http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-
children.pdf (hereinafter cited as DHS, Exercising Prosecutorial Discretion, June 15, 2012).
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children and meet other criteria would be considered for deferred action33 for two years, subject
to renewal. The eligibility criteria for deferred action for childhood arrivals, or DACA, as the
initiative is known, are similar to those for relief in DREAM Act bills. These criteria include the
following: (1) under age 16 at time of entry into the United States; (2) continuous residence in the
United States for at least five years before June 15, 2012 (that is, since June 15, 2007); (3) in
school, graduated from high school or obtained general education development certificate, or
honorably discharged from the Armed Forces; (4) not convicted of a felony, a significant
misdemeanor, or three or more misdemeanors, and not otherwise a threat to national security or
public safety; and (5) age 30 or below on June 15, 2012. Consideration for DACA is limited to
individuals who entered the United States without inspection or whose lawful immigration status
expired as of June 15, 2012. Aliens granted deferred action can apply for employment
authorization. The DACA program, however, provides no pathway to a legal immigration status.34
DHS began accepting requests for consideration of deferred action for childhood arrivals in
August 2012.
Estimates of Potential DREAM Act Beneficiaries
Traditional DREAM Act bills would enable certain unauthorized alien students to obtain LPR
status in the United States 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 2010, using data from the March 2006, March 2007, and March 2008 Current Population
Survey (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 introduced
in the 111th Congress.35 This bill would have established a two-stage process for unauthorized
alien students to obtain LPR status. As detailed below,36 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.
33 Deferred action is “a discretionary determination to defer removal action of an individual as an act of prosecutorial
discretion.” For additional information on prosecutorial discretion and deferred action, see CRS Congressional
Distribution Memorandum, Analysis of June 15, 2012 DHS Memorandum, “Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Children,” by Andorra Bruno, Todd Garvey, Kate Manuel,
and Ruth Ellen Wasem (available to congressional staff from the authors).
34 DHS, Exercising Prosecutorial Discretion, June 15, 2012, p. 3. The memorandum states: “This memorandum
confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its
legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the
exercise of discretion within the framework of the existing law.”
35 Jeanne Batalova and Margie McHugh, DREAM vs. Reality: An Analysis of Potential DREAM Act Beneficiaries,
Migration Policy Institute, July 2010, http://www.migrationpolicy.org (hereinafter cited as MPI, DREAM vs. Reality).
MPI is a self-described independent, nonpartisan, nonprofit think tank dedicated to the analysis of international
migration.
36 See description of S. 729 in “Legislation in the 111th Congress” in the Appendix.
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According to the MPI analysis, if this DREAM Act bill had been enacted, about 2.150 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. About 43% (934,000) of the
estimated 2.150 million potential beneficiaries 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.37
As part of a 2010 analysis of the costs and likely impact of DREAM Act legislation before the
111th Congress, the Center for Immigration Studies (CIS) similarly estimated the number of
potential DREAM Act beneficiaries using 2009 and 2010 CPS data.38 Although CIS did not
identify the bills at issue in its analysis, the bill requirements mentioned matched those in S. 729,
as described above, and S. 3827, a similar bill introduced in the 111th Congress.39 CIS estimated
that there were some 1.998 million unauthorized aliens who would have met the residency and
age requirements under the DREAM Act legislation, including 859,000 children under age 18. Of
the 1.998 million potential beneficiaries, CIS estimated that 1.426 million individuals would have
met the high school graduation, or equivalent, requirement for conditional LPR status (either on
the date of enactment or at a later date). CIS, however, did not provide an estimate of the number
of individuals who likely would have obtained LPR status under the DREAM Act.
Estimates of Potential DACA Beneficiaries
In August 2012, MPI produced estimates of the potentially eligible population under DHS’s
deferred action for childhood arrivals policy based on guidelines issued by the agency. MPI
estimated that as many as 1.8 million unauthorized aliens in the United States could be eligible
for DACA relief.40 As of February 14, 2013, a total of 199,460 requests for consideration of
DACA had been approved.41
Concluding Observations
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.
37 MPI, DREAM vs. Reality, p. 17.
38 Steven A. Camarota, Estimating the Impact of the DREAM Act, Center for Immigration Studies, December 2010,
http://www.cis.org. CIS is a self-described independent, non-partisan, non-profit research organization with a “low-
immigration, pro-immigrant” vision.
39 See description of S. 729 and S. 3827 in “Legislation in the 111th Congress” in the Appendix.
40 Jeanne Batalova and Michelle Mittelstadt, Relief from Deportation: Demographic Profile of the DREAMers
Potentially Eligible under the Deferred Action Policy, Migration Policy Institute, August 2012. These estimates update
earlier June 2012 MPI estimates that put the potentially eligible DACA population at 1.4 million.
41 Data available at USCIS website, http://www.uscis.gov.
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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.
They further maintain that enacting the DREAM Act would have economic benefits for the
United States by adding hundreds of billions of dollars to the economy and promoting new job
creation.
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 also 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 and the rule of law. Taking
issue with the economic benefit argument made by DREAM Act supporters, critics maintain that
the legislation would cost money and would take jobs and college spots away from legal residents
and give them to people who entered the United States illegally. In their view, the availability of
benefits, especially LPR status, would encourage more illegal immigration into the country.42
42 For pro and con arguments, see, for example, Jerry Gonzalez and Phil Kent, “Should Congress Pass DREAM Act for
Immigrant Children?,” Atlanta Journal-Constitution, November 23, 2010; Stacy Teicher Khadaroo, “Why DREAM
Act Passed House, But May Fall in Senate,” Christian Science Monitor, December 9, 2010; and Beth Brown,
“DREAM Act Youths Might Be Worth Billions to Texas,” San Antonio Express-News, October 31, 2012.
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Appendix. Action in the 109th, 110th, and
111th Congresses
Many DREAM Act bills seeking 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 DREAM Act legislation.43
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 cosponsorship.
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. 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.44 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
43 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.
44 The INA grounds of inadmissibility are in INA §212(a), and the INA grounds of deportability are in INA §237(a).
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period and meet additional requirements. These requirements would have included that the alien
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 cancellation of removal. 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 cancellation of removal. 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.45
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 Z46 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.47 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.48
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
45 For further information about the proposed Z classifications, see CRS Report RL32044, Immigration: Policy
Considerations Related to Guest Worker Programs, by Andorra Bruno.
46 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.
47 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.
48 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 cancellation of removal. 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.
Legislation 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 41.49
49 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.
(continued...)
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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 introduced in the 111th Congress, 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.
Under the House-approved DREAM Act amendment to H.R. 5281, an eligible alien could have
gone through the cancellation of removal procedure 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.
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 measure 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.50 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.
(...continued)
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.
50 The Secretary of Homeland Security would have had the authority to waive some of these grounds of inadmissibility
and deportability for humanitarian, family unity, or public interest purposes.
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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 and 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 Forces 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,51 concerning premium tax credits and cost sharing subsidies.52 It
51 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 1996.53
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 services for at least two years.
(...continued)
52 For information on the PPACA provisions, see CRS Report R41714, Treatment of Noncitizens Under the Patient
Protection and Affordable Care Act.
53 For information on current eligibility policy, see CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview and Trends.
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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
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
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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.
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
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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
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
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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.
Under S. 3992, as under the House-approved DREAM Act amendment to H.R. 5281, an eligible
alien could have gone through 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.
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Unauthorized Alien Students: Issues and “DREAM Act” Legislation
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.54 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.
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.
54 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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Unauthorized Alien Students: Issues and “DREAM Act” Legislation
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,55 concerning
premium tax credits and cost sharing subsidies.56 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 1996.57
Author Contact Information
Andorra Bruno
Specialist in Immigration Policy
abruno@crs.loc.gov, 7-7865
55 P.L. 111-148, March 23, 2010.
56 For information on the PPACA provisions, see CRS Report R41714, Treatment of Noncitizens Under the Patient
Protection and Affordable Care Act.
57 For information on current eligibility policy, see CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview and Trends.
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