Unauthorized Alien Students: Issues and “DREAM Act” Legislation

Andorra Bruno
Specialist in Immigration Policy

Supporters of comprehensive immigration reform have urged the President and Congress to pursue reform legislation. While legislative action on comprehensive reform does not appear likely during the remainder of the 111th Congress, there may be an effort to enact a measure, commonly referred to as the “DREAM Act,” to enable certain unauthorized alien students to legalize their status.

Unauthorized aliens in the United States are able to receive free public education through high school. They may experience difficulty obtaining higher education, however, for several reasons. Among these reasons is a provision enacted in 1996 that prohibits states from granting unauthorized aliens certain postsecondary educational benefits on the basis of state residence, unless equal benefits are made available to all U.S. citizens. This prohibition is commonly understood to apply to the granting of “in-state” residency status for tuition purposes. Unauthorized alien students also are not eligible for federal student financial aid. More broadly, as unauthorized aliens, they are not legally allowed to work and are subject to being removed from the country.

Multiple bills have been introduced in recent Congresses to address the unauthorized student population. Most have proposed a two-prong approach of repealing the 1996 provision and enabling some unauthorized alien students to become U.S. legal permanent residents (LPRs) through an immigration procedure known as cancellation of removal. Bills proposing this type of relief for unauthorized students are commonly referred to as the DREAM Act. While there are other options for dealing with this population, this report deals exclusively with the DREAM Act approach in light of the widespread congressional interest in it. Similar stand-alone DREAM Act bills have been introduced in the 111th Congress in the House and the Senate (H.R. 1751, S. 729, S. 3827). Like most DREAM Act bills introduced in prior

Congresses, these measures would repeal the 1996 provision and enable eligible unauthorized students to adjust to LPR status through a two-stage process. Aliens granted cancellation of removal under the bills would be adjusted initially to conditional permanent resident status. To have the condition removed and become full-fledged LPRs, the aliens would need to meet additional requirements.


Date of Report: October 27, 2010
Number of Pages: 16
Order Number: RL33863
Price: $29.95

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Immigration Reform Issues in the 111th Congress

Ruth Ellen Wasem
Specialist in Immigration Policy

There is a broad-based consensus that the U.S. immigration system is broken. This consensus erodes, however, as soon as the options to reform the U.S. immigration system are debated. The number of foreign-born people residing in the United States is at the highest level in U.S. history and has reached a proportion of the U.S. population—12.6%—not seen since the early 20th century. Of the 38 million foreign-born residents in the United States, approximately 16.4 million are naturalized citizens. According to the latest estimates by the Department of Homeland Security (DHS), about 10.8 million unauthorized aliens were living in the United States in January 2009. The Pew Hispanic Center recently reported an estimate of 11.1 million unauthorized aliens in March 2009, down from a peak of 12 million in March 2007. Some observers and policy experts maintain that the presence of an estimated 11 million unauthorized residents is evidence of flaws in the legal immigration system as well as failures of immigration control policies and practices.

The 111th Congress is faced with strategic questions of whether to continue to build on incremental reforms of specific elements of immigration (e.g., employment verification, skilled migration, temporary workers, worksite enforcement, and legalization of certain categories of unauthorized residents) or whether to comprehensively reform the Immigration and Nationality Act (INA). President Barack Obama has affirmed his support for comprehensive immigration reform legislation that includes increased enforcement as well as a pathway to legal residence for certain unauthorized residents.

This report synthesizes the multi-tiered debate over immigration reform into key elements: legal immigration; legalization; immigration control; refugees, asylees, and humanitarian migrants; and alien rights, benefits, and responsibilities. It delineates the issues for the 111th Congress on permanent residence, temporary admissions, border security, worksite enforcement, employment eligibility verification, document fraud, criminal aliens, and the grounds for inadmissibility. Addressing these contentious policy reforms against the backdrop of economic crisis sharpens the social and business cleavages and narrows the range of options.


Date of Report: October 29, 2010
Number of Pages: 16
Order Number: R40501
Price: $29.95

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Visa Waiver Program

Alison Siskin
Specialist in Immigration Policy

Since the events of September 11, 2001, concerns have been raised about the ability of terrorists to enter the United States under the visa waiver program (VWP), because the VWP bypasses the first step by which foreign visitors are screened for admissibility to enter the United States. Nonetheless, the inclusion of countries in the VWP may help foster positive relations between the United States and those countries, promote tourism and commerce, facilitate information sharing, and ease consular office workloads abroad. The VWP allows nationals from certain countries to enter the United States as temporary visitors (nonimmigrants) for business or pleasure without first obtaining a visa from a U.S. consulate abroad. Temporary visitors for business or pleasure from non-VWP countries must obtain a visa from Department of State (DOS) officers at a consular post abroad before coming to the United States. As of October 2010, 36 countries participate in the VWP.

In FY2009, 16.2 million visitors entered the United States under this program, constituting 50.5% of all overseas visitors. To qualify for the VWP, statute specifies that a country must offer reciprocal privileges to U.S. citizens; have had a nonimmigrant refusal rate of less than 3% for the previous year or an average of no more than 2% over the past two fiscal years with neither year going above 2.5%; issue their nationals machine-readable passports that incorporate biometric identifiers; certify that it is developing a program to issue tamper-resident, machine-readable visa documents that incorporate biometric identifiers which are verifiable at the country’s port of entry; and not compromise the law enforcement or security interests of the United States by its inclusion in the program. Countries can be terminated from the VWP if an emergency occurs that threatens the United States’ security interests.

P.L. 110-53 added new requirements to participate in the VWP, and provided the Secretary of the Department of Homeland Security (DHS) the authority to waive the nonimmigrant refusal rate requirement. The waiver became available in October 2008; however, it was suspended on July 1, 2009.

All aliens entering under the VWP must present machine-readable passports. In addition, passports issued between October 26, 2005, and October 25, 2006, must have a digitized photo on the data page, while passports issued after October 25, 2006, must contained electronic data chips (e-passports). Under DHS regulations, travelers who seek to enter the United States through the VWP are subject to the biometric requirements of the US-VISIT program. In addition, aliens entering under the VWP must get an approval from the Electronic System for Travel Authorization (ESTA), a web-based system that checks the alien’s information against relevant law enforcement and security databases, before they can board a plane to the United States. ESTA became operational for all VWP countries on January 12, 2009.

In 2008, eight new countries were added to the VWP who needed the nonimmigrant refusal rate waiver to be part of the program. There are other countries (e.g., Poland, Romania, Taiwan) that have expressed interest in being a part of the VWP. The nonimmigrant refusal rate waiver authority was suspended on June 30, 2009, because DHS did not implement an air-exit system that incorporates biometric identifiers. It is unknown when a biometric exit system will be implemented.


Date of Report: October 28, 2010
Number of Pages: 28
Order Number: RL32221
Price: $29.95

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