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DREAM Act Passes in the House during Lame-Duck Session, But Faces Uphill Battle in Senate
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DREAM Act Passes in the House during Lame-Duck Session, But Faces Uphill Battle in Senate

December 15, 2010
Policy Beat
By Muzaffar Chishti, Claire Bergeron, Kristen McCabe

In the closing days of the 111th Congress's lame-duck session, the U.S. House of Representatives passed the Development, Relief, and Education for Alien Minors (DREAM) Act, a bill aimed at providing a pathway to legal status for certain unauthorized immigrant youths who arrived in the United States as children. The vote marks the first time that the House has ever passed the DREAM Act, despite its introduction on multiple occasions since 2001 as both a stand-alone measure and as part of broader immigration reform legislation.

The bill's passage in the House symbolizes a substantive victory for congressional backers of immigration reform, who have struggled since 2006 to move through Congress any immigration bill that includes a legalization program for some segment of the unauthorized immigrant population.

With the House's passage of the DREAM Act, all eyes are turned to the Senate, where the bill faces an uphill battle. Already, Republican leaders have stated their intent to filibuster the measure, which means that the bill's supporters will need to line up at least 60 votes in order to win the legislation's passage.

In addition, a few Democratic senators have publicly declared their intent to vote against the bill. Consequently, as the congressional session draws nearer to a close, the DREAM Act's fate turns largely on whether the bill's most prominent backers—including Senate Majority Leader Harry Reid (D-NV)—can drum up any bipartisan support for the measure.

Eligibility Requirements

The version of the DREAM Act (HR 6497) that the House passed on December 8 by a vote of 216-198 would allow unauthorized immigrant students to apply for legal status in the United States if they meet various age, residency, and education requirements.

To qualify, applicants would first have to demonstrate that they were under the age of 30 as of the date of enactment; that they had arrived in the United States before the age of 16; and that they had earned a high school diploma or general educational development (GED) certificate, or that they had been admitted to an institution of higher education, in the United States. Applicants would also have to prove that they had been continuously physically present in the United States for a period of at least five years prior to the enactment of the legislation and that they were persons of “good moral character” as defined by the Immigration and Nationality Act (INA).

The bill would render many otherwise qualified individuals ineligible for the benefits of the DREAM Act if they have committed a felony offense or more than two misdemeanor offenses. Individuals previously ordered removed from the United States would also be ineligible for benefits under HR 6497, although the bill carves out a narrow exception for certain young people who received their final order of removal when they were younger than 16 years of age.

Applicants who meet all of HR 6497's qualifying criteria would be eligible to receive five years of conditional nonimmigrant status, which would grant them permission to work in the United States and to travel outside of the country. At the end of the initial five-year period—provided that an applicant continued to have no criminal history, had not abandoned his residency in the United States, and had either completed two years of higher education or had served two years in the United States Armed Forces—the applicant would be eligible to renew his conditional legal status for another five years. After ten years in conditional status, eligible applicants could apply for lawful permanent residence.

Bill Crafted to Reduce Cost, Number Eligible

Significantly, HR 6497 contains stricter eligibility requirements than many of the earlier versions of the DREAM Act. It changes the age cut-off for eligibility from under 35 to under 30, and increases the waiting period for lawful permanent residence from six to ten years. It also would make DREAM Act beneficiaries ineligible for most forms of federal financial aid, and would preclude them from participating in the federal government's new health insurance exchanges created under the health care reform law that went into effect last March. In addition, HR 6497 would require applicants to apply for legal status within one year of either the bill's passage or the date that the applicant graduates from high school (or receives his or her GED).

According to analysis by the Migration Policy Institute, an estimated 2.1 million youth and young adults would be eligible to apply for conditional legal status under the prior version of the bill that capped eligibility at age 35. However, MPI further estimated that only about 38 percent—or 825,000—of those 2.1 million would be likely to make it through the DREAM Act's higher education or military routes to gain legal permanent residence because of factors such as income and language ability.

Taking into account the House bill's change in the age cap for eligibility from under 35 to under 30 and the removal of a provision that would extended legal status to people over the age of 35 who possessed at least an associate's degree upon the date of enactment, MPI estimates that the eligible population has dropped to 1.9 million, with perhaps 755,000 likely to gain legal permanent residence.

Supporters and Detractors

Backers of the DREAM Act hope that the House bill's tougher eligibility requirements will make it more appealing to moderate Democrats and Republicans in the Senate. Thus far, however, there is no evidence that any of the senators who previously expressed reservations about the DREAM Act have changed their position because of the new requirements.

In an effort to capitalize on the political momentum spurred by the House's action, Democratic senators on December 9 agreed to withdraw a previous Senate version of the bill (S 3992) in order to try to gain support for the House-passed version.

Supporters emphasized the fact that the DREAM Act has traditionally enjoyed broad-based bipartisan support in Congress, as well as the backing of key education and military groups. More than 100 college and university presidents have written letters in support of the legislation, emphasizing that allowing DREAM beneficiaries to legalize their status would greatly increase their future earning potential and enable the United States to reap the benefits of ambitious students who have already attended U.S. elementary and high schools. Education Secretary Arne Duncan, Defense Secretary Robert Gates, and former Secretary of State Colin Powell have publicly backed the measure.

In addition, a recent Gallup poll indicates that the majority of Americans (54 percent) support passage of the DREAM Act. The support is strongest amongst Democrats, 66 percent of whom support the measure, and younger Americans aged 18 to 34. Gallup also estimates that 57 percent of independent voters support the measure.

Concerns over unemployment and the polarized political climate, however, led many senators who had publicly declared support for the DREAM Act to express reservations about voting for the bill this time around.

DREAM Act opponents argued that the bill would create "amnesty" for unauthorized immigrants by rewarding illegal behavior, and that it would place a strain on the country's finite education and financial aid resources. Others objected to the process used to bring the bill to the floor, stressing that the DREAM Act bypassed committee action.

Still, many backers of the measure considered it strategically important to bring the DREAM Act to a vote during the current legislative session. Several supporters see the vote as fulfilling a commitment to Hispanic constituents, who played a key role in the re-election of many Democrats. Senator Reid, for example, publicly declared just before the midterm elections that he would bring the DREAM Act to the Senate floor during the lame-duck session, a promise some experts view as having played a critical role in the outcome of his intensely contested reelection.

Backers have also emphasized that while the chances of passing the DREAM Act in the Senate may seem uncertain now, it will be even more difficult to enact the measure after Congress changes hands. Beginning in January, Republicans will control the House while the Democratic majority in the Senate will decrease from 59 to 53. Such a political makeup likely will make it far more difficult to pass any form of immigration legislation that grants legal status to any group of unauthorized immigrants — in 2011 and perhaps beyond.

Policy Beat in Brief

Supreme Court Oral Arguments on 2007 Legal Arizona Workers Act. The U.S. Supreme Court heard oral arguments on the constitutionality of the 2007 Legal Arizona Workers Act, which requires all Arizona employers to use the federal E-Verify system to check whether potential employees are authorized to work and allows the state to suspend or revoke the business licenses of employers who are found to have hired unauthorized workers. The coalition of businesses and immigrant-rights groups challenging the Arizona law, including the U.S. Chamber of Commerce, argued that the measure is preempted by the 1986 Immigration Reform and Control Act (IRCA). Supporters of the Arizona law maintain the legislation is valid because it is modeled after federal law, and because IRCA allows states to pass licensing laws that relate to immigrants. The court is expected to issue a decision in the spring of 2011.

New Estimate of Legal Permanent Resident Population. The Department of Homeland Security's Office of Immigration Statistics (OIS) has released new estimates indicating that 12.5 million lawful permanent residents (LPRs) resided in the United States as of January 1, 2009. While estimates of LPRs have remained steady since 2007, the estimated number of LPRs eligible for citizenship through naturalization—7.9 million, or 63 percent of the 2009 LPR population—decreased by 3 percent between January 1, 2007 and January 1, 2009. Although LPRs are authorized to live and work permanently in the United States, the transition to U.S. citizenship is often perceived as a key indicator of immigrant integration.

  • Check out the OIS report for more detailed information on estimates of the LPR population.
  • Read more about foreign-born persons becoming U.S. citizens in the Spotlight on Naturalization Trends.

Record Number of Applicants for Diversity Visa Lottery. A record 14.8 million people applied for an immigrant visa to the United States through the 2012 diversity visa lottery (also known as the Green Card Lottery) this year, a 23 percent increase over the previous year's 12 million applicants. The Diversity Immigrant Visa Program, which Congress established through the Immigration Act of 1990, awards 55,000 visas annually to qualified individuals from countries that have traditionally had low levels of immigration to the United States. For the past 12 diversity visa cycles, 5,000 visas have been allocated to the Nicaraguan Adjustment and Central American Relief Act program, reducing the number available to 50,000. Because demand for the program generally far exceeds the number of visas available, an electronic lottery system randomly selects which applications will be accepted for processing. The results of the 2012 visa lottery will be accessible to entrants beginning May 1, 2011.

  • See the results of the 2011 diversity visa lottery.

Fee Waiver Request Form Introduced. On November 23, 2010, the first-ever fee waiver request form became available for persons seeking immigration benefits through U.S. Citizenship and Immigration Services (USCIS). The fee waiver form explains how fee waiver eligibility is determined and provides a standard mechanism for applying for a fee waiver. The introduction of the form accompanies the new fee schedule for USCIS immigration benefits. Under the new schedule, fees for immigration applications have increased by approximately 10 percent overall.

Private Immigration Bill Approved for Marine's Widow. The House and Senate have passed a private bill to grant legal permanent residence to Hotaru Ferschke, the Japanese widow of a Marine killed in Iraq. According to U.S. immigration law, Ferschke was initially ineligible to receive LPR status because she and her husband had married by proxy (where both parties were not physically present) and had allegedly not consummated the marriage. Once the bill is signed by President Obama, Ferschke will become a legal permanent resident of the United States. Private bills are an extremely rare form of relief for individuals who are unable to obtain the desired immigration status through normal administrative or judicial processes.

Ecuador Offers Incentives for Migrants' Return. As part of its Welcome Home program, the Ecuadoran government is offering émigrés who agree to return to the country a one-way plane ticket, funds to start a business, and a waiver on import taxes and fees they might incur during the relocation. The New York Times reports that the program, which started in 2007, has recently experienced increased participation due to the its unique marketing campaign focused on New York City and the lingering impacts of the economic crisis in the United States.

State and Local Policy Beat in Brief

Washington Opts Out of Secure Communities. Officials in Washington announced that the state will not participate in Immigration and Customs Enforcement's (ICE) controversial Secure Communities program, through which ICE checks the fingerprints of individuals detained at state and local jails against federal immigration databases. ICE has credited the program with leading to the removal of record numbers of noncitizens (both unauthorized and resident immigrants) with criminal convictions. Critics allege, however, that Secure Communities often targets low-level offenders who are detained on minor charges such as traffic violations. Currently, Secure Communities is operating in 831 jurisdictions in 34 states. Washington is the first state to opt out of participating in the program.

  • Read the latest ICE press release on participation in Secure Communities.
  • Read more about the confusion surrounding whether state and local entities can opt out of the Secure Communities program in the October 2010 Policy Beat.

California Upholds Tuition Law for Unauthorized Students. The California Supreme Court upheld the constitutionality of a state law that allows certain unauthorized immigrant students to pay in-state tuition at California's public colleges and universities. Under California law AB 540, unauthorized immigrant students who attend three years of high school in California and graduate may be eligible to receive in-state tuition benefits. Those challenging the law alleged that, pursuant to the federal Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, California could not allow unauthorized immigrants to pay in-state tuition unless it gave the same benefits to U.S. citizen students regardless of their state of residence.

ID Cards in Durham, NC and Oakland, CA. The city council of Durham, NC, voted 5-2 in favor of allowing the city's police department to accept the matricula consular identification (CID) card as a valid form of identification. CID cards are issued by the Mexican government to Mexicans residing abroad, regardless of their immigration status. The move is aimed at enhancing cooperation between the police and the immigrant community in Durham, specifically by encouraging unauthorized immigrants to report crimes even if they do not have a valid U.S. identification document. The city of Oakland, CA approved a somewhat similar measure allowing the city itself to issue municipal identification cards to all Oakland residents, regardless of their immigration status.

  • Read the text of the new resolution from the Durham, NC City Council.
  • Read more about municipal ID card programs in the August 2007 Policy Beat.

New York Governor Pardons Six Immigrants Facing Deportation. Governor David A. Paterson (D-NY) issued state pardons to six immigrants facing deportation as a result of past convictions in what is only the first round of pardons to be issued through the governor's new pardon board for noncitizens. Patterson created the board last May after he issued a pardon to Qing Hong Wu, a 29-year-old permanent resident who faced deportation to China as a result of crimes committed as a teenager. Because current immigration law bars certain groups of immigrants with criminal records from applying for relief from removal, state pardons for criminal convictions are often the only legal avenue by which immigrants with past convictions can avoid deportation.

LPR Voting Measure Passed in Brookline, MA. Residents in the town of Brookline, MA approved a resolution that will allow LPRs to vote in local elections, including those for school board and town selectmen. Brookline is one of a handful of jurisdictions around the country to allow noncitizens to vote in local elections. During the November midterm elections, voters in San Francisco and Portland, ME rejected similar immigrant voting measures. While these measures are well within local jurisdiction, U.S. law prohibits noncitizens from voting in federal elections.

  • Read the results of the recent Brookline Town Meeting.
  • Read more about initiatives to allow lawful permanent residents to vote in the October 2010 Policy Beat.
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