Unauthorized Alien Students: Issues and “DREAM Act” Legislation

Andorra Bruno
Specialist in Immigration Policy

The 109th and 110th Congresses considered, but did not enact, comprehensive immigration reform legislation that included large-scale legalization programs for unauthorized aliens. In the aftermath of these unsuccessful efforts, some interested parties have urged the President and Congress to pursue more limited legislation to address the status of unauthorized alien students. Such legislation is commonly referred to as the “DREAM Act.”

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

Multiple DREAM Act bills have been introduced in recent Congresses to address the unauthorized student population. Most have proposed a two-prong approach of repealing the 1996 provision and enabling some unauthorized alien students to become U.S. legal permanent residents (LPRs) through an immigration procedure known as cancellation of removal. While there are other options for dealing with this population, this report deals exclusively with the DREAM Act approach in light of the considerable congressional interest in it.

In the 111th Congress, the House approved DREAM Act language as part of an unrelated bill, the Removal Clarification Act of 2010. 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) have again been introduced in the 112th Congress. It is unclear, however, whether any of these measures will be considered.

On June 15, 2012, 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.


Date of Report: June 19, 2012
Number of Pages: 29
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.

VAWA expired in 2011. On November 30, 2011, Senator Leahy introduced S. 1925, the Violence Against Women Reauthorization Act of 2011. It was referred to the Committee on the Judiciary and reported favorably on February 7, 2012. On April 26, 2012, the Senate passed it by a vote of 68 to 31. In the House, Representative Adams introduced H.R. 4970 (To reauthorize the Violence Against Women Act of 1994) on April 27, 2012. It was referred to the House Judiciary Committee where it was reported favorably on May 8, 2012. The House passed the bill in the nature of a substitute on May 16, 2012, by a vote of 222 to 205.

H.R. 4970 and S. 1925 both include provisions that would mandate background information on restraining and protective orders issued against the sponsoring U.S. based petitioners and prohibit marriage brokers from marketing information about foreign nationals under age 18. Both bills would allow children to continue to apply for protections and legal status under VAWA in the case of the death of their self-petitioner parent, a protection currently afforded only to child applicants for lawful permanent status under family-based immigration provisions of the INA. Both bills would extend VAWA coverage to derivative children of deceased petitioners as well as protect U visa petitioners under age 21 and derivative children of adult U visa petitioners from “aging out” of eligibility after filing a U visa petition. They would exempt VAWA self-petitioners, U visa petitioners, and battered foreign nationals from removal proceedings if their financial circumstances classified them as inadmissible on “public charge grounds.” Finally, both bills would allow U visa petitioners with conditional LPR status to obtain hardship waivers removing their conditional status in cases of bigamy.

S. 1925 contains provisions that would expand protections and eligibility to foreign national victims of domestic abuse. Among other provisions, the bill would expand the definition of abuse under the U visa provisions to include “stalking.” It would also expand the annual number of U visas issued from 10,000 to 15,000 for a limited number of years. It would require more extensive background checks on each U.S. citizen who petitions on behalf of an alien fiancé or fiancée using the National Crime Information Center’s Protection Order Database. Inconsistencies regarding self-disclosures of past abuse would be disclosed to the foreign national. In addition, the bill would establish federal criminal penalties for specified broker violations, misuse of information obtained by international marriage brokers, and failures of U.S. clients to make required self-disclosures. Finally, the bill would permit U and T visa holders in the Commonwealth of the Northern Mariana Islands (CNMI) to count time physically present in the Commonwealth toward the three-year continuous U.S. presence requirement for adjusting their status to legal permanent residence.


Date of Report: June 7, 2012
Number of Pages: 38
Order Number: R42477
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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.

VAWA expired in 2011. On November 30, 2011, Senator Leahy introduced S. 1925, the Violence Against Women Reauthorization Act of 2011. It was referred to the Committee on the Judiciary and reported favorably on February 7, 2012. On March 27, 2012, Representative Gwen Moore introduced a similar bill in the House, H.R. 4271.

S. 1925 contains key provisions that would expand protections and eligibility to foreign national victims of domestic abuse. Among other provisions included in the bill, it would allow children to continue to apply for protections and legal status under VAWA in the case of the death of their self-petitioner parent, a protection currently afforded only to child applicants for lawful permanent status under family-based immigration provisions of the INA. It would exempt VAWA self-petitioners, U visa petitioners, and battered foreign nationals from removal proceedings if their financial circumstances classified them as inadmissible. It would provide foreign nationals with expanded background information on their sponsoring U.S. citizen and LPR spouses. It would also expand the annual number of U visas issued from 10,000 to 15,000 for a limited period.

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 immigrants 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 and cost the U.S. taxpayers.

The second related concern is the degree to which VAWA provisions might unintentionally facilitate marriage 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 immigrants to circumvent U.S. immigration laws, reliable empirical support for these assertions is limited.


Date of Report: April 10, 2012
Number of Pages: 34
Order Number: R42477
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Refugee Admissions and Resettlement Policy

Andorra Bruno
Specialist in Immigration Policy

A refugee is a person fleeing his or her country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Typically, the annual number of refugees that can be admitted into the United States, known as the refugee ceiling, and the allocation of these numbers by region are set by the President after consultation with Congress at the start of each fiscal year. For FY2012, the worldwide refugee ceiling is 76,000, with 73,000 admissions numbers allocated among the regions of the world and 3,000 numbers comprising an unallocated reserve. An unallocated reserve is to be used if, and where, a need develops for refugee slots in excess of the allocated numbers. The FY2012 regional allocations are, as follows: Africa (12,000), East Asia (18,000), Europe and Central Asia (2,000), Latin America/Caribbean (5,500), and Near East/South Asia (35,500).

Overseas processing of refugees is conducted through a system of three priorities for admission. Priority 1 comprises cases involving persons facing compelling security concerns. Priority 2 comprises cases involving persons from specific groups of special humanitarian concern to the United States (e.g., Iranian religious minorities). Priority 3 comprises family reunification cases involving close relatives of persons admitted as refugees or granted asylum.

Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg Amendment,” which was first enacted in 1989, allows certain former Soviet and Indochinese nationals to qualify for refugee status based on their membership in a protected category with a credible fear of persecution. In 2004, Congress amended the Lautenberg Amendment to add the “Specter Amendment,” which requires the designation of categories of Iranian religious minorities whose cases are to be adjudicated under the Lautenberg Amendment’s reduced evidentiary standard. Subsequent laws extended the Lautenberg Amendment, as amended by the Specter Amendment, through FY2010. For FY2011, Congress extended the amendment only until June 1, 2011, and it temporarily lapsed on that date. It was re-enacted for FY2012 by P.L. 112-74, however, and is now in effect until October 1, 2012. Another provision, referred to as the “McCain Amendment” or the “McCain-Davis Amendment,” had made certain adult children of Vietnamese re-education camp survivors eligible for U.S. refugee resettlement. This amendment was repealed by P.L. 111-117.

The Department of Health and Human Service’s Office of Refugee Resettlement (HHS/ORR) administers an initial transitional assistance program for temporarily dependent refugees and Cuban/Haitian entrants. This report will be updated as major developments occur.


Date of Report: March 7, 2012
Number of Pages: 15
Order Number: RL31269
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Immigration Legislation and Issues in the 112th Congress

Andorra Bruno, Coordinator
Specialist in Immigration Policy

Despite President Obama’s calls for a national conversation on immigration reform, immigration has not been a front-burner issue for the 112th Congress. The 112th Congress, however, has taken legislative action on some measures containing provisions on a range of immigration-related topics. The Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112- 10) terminated a special refugee provision known as the Lautenberg amendment. This amendment was subsequently re-enacted for FY2012 by the Consolidated Appropriations Act, 2012 (P.L. 112- 74). P.L. 112-74 also contains provisions on border security and other issues. P.L. 112-58, a narrow immigration law, concerns military service-based immigration benefits.

The House has passed the Fairness for High-Skilled Immigrants Act of 2011 (H.R. 3012), which would make changes to permanent employment-based and family-based admissions. It also has passed legislation to reauthorize the H-1C temporary worker category for nurses coming to work in medically underserved areas in the United States (H.R. 1933).

In other action on immigration-related legislation, the House Judiciary Committee has reported or ordered reported bills on electronic employment eligibility verification (H.R. 2885), immigrant detention (H.R. 1932), visa security (H.R. 1741), and the diversity visa (H.R. 704). Both the House Foreign Affairs Committee and the Senate Judiciary Committee have reported bills on victims of trafficking (H.R. 2830, S. 1301), and the House Natural Resources Committee has reported a bill concerning foreign residents of the Commonwealth of the Northern Mariana Islands (CNMI), a U.S. territory in the Pacific. In addition, House and Senate committees and subcommittees have held hearings on a number of immigration-related issues.

This report discusses immigration-related issues that have received legislative action or are of significant congressional interest in the 112th Congress. Department of Homeland Security (DHS) appropriations are addressed in CRS Report R41982, Homeland Security Department: FY2012 Appropriations, and, for the most part, are not covered here.


Date of Report: January 12, 2012
Number of Pages: 27
Order Number: R42036
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