Unauthorized Alien Students: Issues and “DREAM Act” Legislation

Andorra Bruno
Specialist in Immigration Policy

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.


Date of Report: February 27, 2013
Number of Pages: 32
Order Number: RL33863
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Immigration Provisions of the Violence Against Women Act (VAWA)

William A. Kandel
Analyst in Immigration Policy

The Immigration and Nationality Act (INA) includes provisions to assist foreign nationals who have been victims of domestic abuse. These provisions, initially enacted by Congress with the Immigration Act of 1990 and the Violence Against Women Act (VAWA) of 1994, afford benefits to abused foreign nationals and allow them to self-petition for lawful permanent resident (LPR) status independently of the U.S. citizen or LPR relatives who originally sponsored them. Congress reauthorized VAWA with the Battered Immigrant Women Protection Act of 2000, which also created the U visa for foreign national victims of a range of crimes—including domestic abuse—who assisted law enforcement. A second reauthorization in 2005 added protections and expanded eligibility for abused foreign nationals. Authorization for appropriations for the programs under VAWA expired in 2011.

The 112th Congress passed two bills, S. 1925 and H.R. 4970, reauthorizing most VAWA programs, among other provisions. Despite containing some related immigration provisions, H.R. 4970 differed in substantive ways from S. 1925. It did not extend protections to new groups to the same extent as S. 1925 and included more restrictions with the purpose of curtailing immigration fraud. Most notably, it maintained the annual number of U visas at its current limit of 10,000, in contrast with S. 1925, which would have increased the number to 15,000. To fund the increase in U visas, S. 1925 included a revenue provision that created a “blue slip” procedural complication. Negotiations stalled between the chambers, and neither bill was enacted into law.

In the 113th Congress, the Senate passed S. 47, as amended on February 12, 2013. In the House, H.R. 11 was referred to committee. The VAWA-related immigration provisions, similar in both bills, are comparable to those found in S. 1925 from the previous Congress. On February 22, 2013, the House Committee on Rules issued its Committee Print 113-2 for S. 47—Violence Against Women Reauthorization Act of 2013, Text of Amendment in the Nature of a Substitute.

S. 47/H.R. 11 and the Committee Rules bill all would maintain the annual number of U visas at 10,000, thereby eliminating the associated “blue slip” procedural complication. The bills would extend VAWA coverage to derivative children of deceased self-petitioning parents and provide for public charge waivers. All three bills would include protections for petitioning children who “age out” of eligibility, unknowing bigamy victims, and foreign nationals under age 18. They all would increase annual reporting requirements and permit information sharing of VAWA data for national security purposes.

Regarding differences between the three bills, S. 47/H.R. 11 would amend current law by including “stalking” in the definition of criminal activity covered under the U visa. S. 47/H.R. 11 would require more extensive background checks and demand more consistent self-disclosures for U.S. citizen petitioners of alien fiancés or fiancées to provide the latter with greater information about potential abuse. The two bills would impose additional penalties for marriage broker violations as well as false or incomplete representations by U.S. clients to foreign nationals to foster dating or matrimonial relationships. The Rules Committee bill does not contain these provisions.

The Rules Committee bill would eliminate U visa certification eligibility for U visa petitioners described as likely to be helpful to law enforcement. It includes a provision that would grant the Attorney General the authority to go beyond the record of conviction to ascertain if domestic violence crimes constitute crimes of violence when determining if an individual is deportable. S. 47/H.R. 11 do not contain these provisions.

Two potential concerns for Congress have been emphasized regarding the immigration provisions of VAWA. The first is whether the proposed VAWA reauthorization provides sufficient relief to foreign nationals abused by their U.S. citizen or LPR sponsoring relatives. Advocates for battered foreign nationals suggest that additional provisions are needed to assist this population in obtaining legal and economic footing independently of their original sponsors for legal immigrant status. Critics of expanding immigration, however, question the extent to which these provisions may increase the number of legal immigrants, thereby incurring costs to U.S. taxpayers.

The second related concern is the degree to which VAWA provisions unintentionally facilitate immigration fraud. This may occur through what some perceive as relatively lenient standards of evidence to demonstrate abuse; as the unintended result of processing procedures between the District Offices of the U.S. Citizenship and Immigration Services (USCIS), which adjudicate most immigration applications, and the USCIS Vermont Service Center, which adjudicates VAWA petitions; or as an unintended consequence of the structure of current law. While some suggest that VAWA provides opportunities for dishonest and enterprising foreign nationals to circumvent U.S. immigration laws, empirical evidence offers minimal support for these assertions.

Date of Report: Febrary 27, 2013
Number of Pages: 40
Order Number: R42477
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Brief History of Comprehensive Immigration Reform Efforts in the 109th and 110th Congresses to Inform Policy Discussions in the 113th Congress

Ruth Ellen Wasem
Specialist in Immigration Policy

Leaders in both chambers of Congress have listed immigration reform as a legislative priority in the 113th Congress. Most policymakers agree that the main issues in “comprehensive immigration reform” (CIR) include increased border security and immigration enforcement, improved employment eligibility verification, revision of legal immigration, and options to address the millions of unauthorized aliens residing in the country. These elements were among the features that President Barack Obama emphasized when he called for the 113th Congress to take up CIR legislation.

Similar to President Obama’s recent statements on CIR, former President George W. Bush stated that comprehensive immigration reform was a top priority of his second term. President Bush’s principles of immigration reform included increased border security and enforcement of immigration laws within the interior of the United States, as well as a major overhaul of temporary worker visas, expansion of permanent legal immigration, and revisions to the process of determining whether foreign workers were needed. Then—as well as now—the thorniest of these issues centered on unauthorized alien residents of the United States.

During the 109th Congress, both chambers passed major overhauls of immigration law but did not reach agreement on a comprehensive reform package. In the 110th Congress, Senate action on comprehensive immigration reform legislation stalled at the end of June 2007 after several weeks of intensive floor debate. The House did not act on comprehensive legislation in the 110th Congress.

The three major CIR bills in the 109th and 110th Congresses were the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437 as passed by the House in 109th Congress), the Comprehensive Immigration Reform Act of 2006 (S. 2611 as passed by the Senate in 109th Congress), and the Comprehensive Immigration Reform (S. 1639 as considered by the Senate in 110th Congress). All three of the major CIR bills had provisions that would have

• increased resources for border security, 
• expanded employment eligibility verification, 
• increased the worksite enforcement penalties, 
• broadened inadmissibility grounds pertaining to national security and illegal entry and added a ground for gang membership, 
• expedited the implementation of the automated entry-exit system known as USVISIT (United States Visitor and Immigrant Status Indicator Technology), 
• broadened the categories of aliens subject to expedited removal, 
• increased the criminal penalties for immigration and document fraud, and 
• expanded the categories of aliens subject to mandatory detention. 

Despite these similarities, there were substantial differences between the chambers regarding the treatment of unauthorized aliens as well as allocations of visas across family and employment categories for future flows of legal immigrants. The House-passed bill in the 109th Congress would have criminalized unauthorized presence. In contrast, the Senate bills in the 109th and 110th Congresses would have created avenues for unauthorized aliens who met a set of criteria and paid prescribed penalties to acquire “earned legalization.” The Senate bills also had provisions that would have made substantial revisions to legal permanent admissions, notably revising and expanding the employment-based permanent and temporary visa categories.

The failure of these substantial efforts to enact CIR in the 109th and 110th Congresses has prompted some to characterize CIR as a “third rail” issue that is too highly charged to touch.


Date of Report: February 27, 2013
Number of Pages: 31
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Immigration-Related Detention

Alison Siskin
Specialist in Immigration Policy

The 113th Congress may consider a comprehensive reform of the nation’s immigration system (CIR), and during such discussions, the detention of noncitizens in the United States might be an issue. Congress may choose to reevaluate detention priorities (i.e., who should be detained, when they should be detained) and detention resources. Under the law, there is broad authority to detain foreign nationals (aliens/noncitizens) while awaiting a determination of whether the noncitizen should be removed from the United States. The law also mandates that certain categories of aliens are subject to mandatory detention (i.e., the aliens must be detained). Aliens subject to mandatory detention include those arriving without documentation or with fraudulent documentation, those who are inadmissible or deportable on criminal grounds, those who are inadmissible or deportable on national security grounds, those certified as terrorist suspects, and those who have final orders of deportation. Aliens not subject to mandatory detention may be detained, paroled, or released on bond. The priorities for detention of these aliens are specified in statute and regulations. For example, the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) increased the categories of aliens subject to mandatory detention. This increase has raised concerns about the justness of mandatory detention, especially as it is applied to asylum seekers arriving without proper documentation.

As of December 22, 2012, on an average day in FY2013, there were 34,696 noncitizens in Department of Homeland Security (DHS) custody. The amount of detention space is almost exclusively controlled by Congress through appropriations, and Congress has been active in providing oversight of detention space allocations and detention conditions. Since FY2002, Congress has increased the number of funded detention beds from 21,109 beds to 34,000 beds. As DHS increases its ability to identify aliens who are subject to removal from local jails in more remote locations, the nationwide allocation of detention space may become an issue.

Furthermore, the detention policy for aliens who have received a final order of removal may also be a congressional concern. After a final removal order has been issued against an alien, the law provides that the alien be removed within 90 days, except as otherwise provided in the statute. Certain aliens subject to a removal order “may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.” This provision had been interpreted as permitting indefinite detention where removal was not reasonably foreseeable, but in 2001, the U.S. Supreme Court in Zadvydas v. Davis, interpreted it as only permitting detention for up to six months where removal was not reasonably foreseeable. Nonetheless, the U.S. Supreme Court stated that its ruling was made “absent clear guidance from Congress” (i.e., that it was not clear what congressional intent was related to detaining aliens who could not be removed within 90 days). Comprehensive immigration reform (CIR) bills in the 109th and 110th Congress would have modified and codified the regulations regarding the detention of those with final orders of removal. In the 112th Congress, H.R. 1932, as reported by the House Judiciary Committee would have amended the Immigration and Nationality Act to allow DHS to indefinitely detain, subject to six-month reviews, aliens under orders of removal who could not be removed if certain conditions were met.


Date of Report: January 18, 2013
Number of Pages: 21
Order Number: RL32369
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