For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31365 ------------------------------------------------------------------------------ Order Code RL31365 Unauthorized Alien Students: Legislation in the 107th and 108th Congresses Updated January 17, 2007 Andorra Bruno Specialist in Social Legislation Domestic Social Policy Division Jeffrey J. Kuenzi Analyst in Social Legislation Domestic Social Policy Division Unauthorized Alien Students: Legislation in the 107th and 108th Congresses Summary Unauthorized alien students constitute a subpopulation of the total U.S. unauthorized alien population that is of particular congressional interest. These students receive free public primary and secondary education, but often find it difficult to attend college for financial reasons. A provision enacted as part of a 1996 immigration law 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. In addition, unauthorized aliens are not eligible for federal student financial aid. More generally, as unauthorized aliens, they are not legally allowed to work in the United States and are subject to being removed from the country at any time. Bills were introduced in the 107th and 108th Congresses to address the educational and immigration circumstances of unauthorized alien students. Most of these bills had two key components. They would have repealed the 1996 provision. They also would have provided immigration relief to certain unauthorized alien students by enabling them to become legal permanent residents of the United States. In both Congresses, bills known as the DREAM Act (S. 1291 in the 107th Congress; S. 1545 in the 108th Congress) containing both types of provisions were reported by the Senate Judiciary Committee. This report will not be updated. Contents Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislation in the 107th and 108th Congresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Activity in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Activity in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Overview of Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Markup of S. 1545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Federal Postsecondary Educational Benefits . . . . . . . . . . . . . . . . . . . . . 5 List of Tables Appendix A. Comparison of Major Provisions of Bills in the 107th Congress on Unauthorized Alien Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Appendix B. Comparison of Major Provisions of Bills in the 108th Congress on Unauthorized Alien Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Unauthorized Alien Students: Legislation in the 107th and 108th Congresses Background Recent estimates that the unauthorized (illegally present) alien population in the United States exceeds 11 million has focused renewed attention on this population.1 The 107th and 108th Congresses considered legislation to address one segment of the unauthorized population -- aliens who, as children, were brought to live in the United States by their parents or other adults. In a 1982 case, the Supreme Court struck down a state law that prohibited unauthorized alien children from receiving a free public education, making it difficult, if not impossible, for states to deny an elementary or secondary education to such students."2 Unauthorized aliens 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." This provision (IIRIRA §505) 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. Although IIRIRA §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. The Higher Education Act of 1965, as amended,4 also makes 1 See Jeffrey S. Passel, The Size and Characteristics of the Unauthorized Migrant Population in the U.S.; Estimates Based on the March 2005 Current Population Survey, Pew Hispanic Center, Mar. 7, 2006, at [http://pewhispanic.org/reports/report.php?ReportID =61]. Also see CRS Report RS21938, Unauthorized Aliens in the United States: Estimates Since 1986, by Ruth Ellen Wasem. 2 Plyler v. Doe, 457 U.S. 202 (1982). Also 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, Sept. 30, 1996. 4 P.L. 89-329, Nov. 8, 1965, 20 U.S.C. §1001 et seq. Section 484(a)(5) sets forth (continued...) CRS-2 unauthorized alien students ineligible for federal student financial aid. In most instances, they are likewise ineligible for state financial aid. Moreover, as unauthorized aliens, they are unable to work legally and are subject to removal from the country regardless of the number of years they have lived in the United States. Legislation in the 107th and 108th Congresses In the 107th and 108th Congresses, legislation was introduced -- but not enacted -- to provide relief to unauthorized alien students. These bills sought to repeal IIRIRA §505 and, thereby, provide unauthorized students greater access to postsecondary education. These bills also would have enabled certain unauthorized students to adjust to legal permanent resident (LPR) status. Legal permanent residents, sometimes referred to as "green card holders," are able to live and work indefinitely in the United States. In most cases, they are able to apply for U.S. citizenship after five years. The unauthorized student bills introduced in the 107th and 108th Congresses were ! H.R. 1563, Preserving Educational Opportunities for Immigrant Children Act, introduced in the 107th Congress and reintroduced as H.R. 84 in the 108th Congress by Representative Sheila Jackson-Lee; ! H.R. 1582, Immigrant Children's Educational Advancement and Dropout Prevention Act, introduced in the 107th Congress by Representative Luis Gutierrez; ! H.R. 1918, Student Adjustment Act, introduced in the 107th Congress and reintroduced as H.R. 1684 in the 108th Congress by Representative Chris Cannon; ! S. 1291, Development, Relief, and Education for Alien Minors Act (DREAM Act), introduced in the 107th Congress and reintroduced (in modified form) as S. 1545 in the 108th Congress by Senator Orrin Hatch; ! S. 1265, Children's Adjustment, Relief, and Education Act (CARE Act), introduced in the 107th Congress by Senator Richard Durbin; and ! Title III, Subtitle D of S. 8, Educational Excellence for All Learners Act of 2003, introduced in the 108th Congress by then-Senate Minority Leader Thomas Daschle.5 4 (...continued) 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. 5 Provisions to legalize the status of certain unauthorized alien students were also included in bills entitled the "Earned Legalization and Family Unification Act," introduced in the 107th Congress by Rep. Richard Gephardt (H.R. 5600), and in the 108th Congress by Rep. Gephardt (H.R. 3271) and Rep. Jackson-Lee (H.R. 1830). These bills would not have repealed IIRIRA §505. CRS-3 Activity in the 107th Congress In the 107th Congress, the Senate Judiciary Committee reported an amended version of S. 1291, known as the DREAM Act. This amended measure represented a compromise between S. 1291, as introduced, and S. 1265. None of the other pending bills saw any action beyond committee referral. (Appendix A contains a table comparing four unauthorized alien student bills introduced in the 107th Congress.) Activity in the 108th Congress In the 108th Congress, S. 1291, as reported by the Senate Judiciary Committee in the 107th Congress, was included as part of S. 8, an education measure introduced by then-Senate Minority Leader Daschle. In addition, a new version of the DREAM Act (S. 1545) was introduced by Senator Hatch. On November 25, 2003, the Senate Judiciary Committee reported S. 1545 with an amendment.6 The other unauthorized alien student bills did not see any action beyond committee referrals. Overview of Bills. Four bills (H.R. 84, H.R. 1684, S. 8, and S. 1545, as reported)7 would have enabled eligible unauthorized students to obtain LPR status through an immigration procedure known as cancellation of removal. (The major features of the bills are compared in Appendix B.) Cancellation of removal is a discretionary form of relief authorized by the Immigration and Nationality Act (INA), as amended,8 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.9 H.R. 84 and H.R. 1684 would have permanently amended the INA to make unauthorized alien students who meet certain requirements eligible for cancellation of removal/adjustment of status, whereas S. 8 and S. 1545 would have established temporary cancellation of removal/adjustment of status authorities separate from the INA. H.R. 1684, S. 8, and S. 1545 would have allowed aliens to affirmatively apply for relief without being placed in removal proceedings. Other bills, H.R. 3271 and H.R. 1830,10 also would have enabled eligible unauthorized alien students to obtain LPR status, but they would not have done so through a cancellation of removal mechanism. Instead, they would have established a temporary adjustment of status authority. 6 A written report was subsequently filed. See U.S. Congress, Senate Committee on Judiciary, Amending the Illegal Immigration Reform Act of 1996, report to accompany S. 1545, 108th Cong., 2nd sess., S.Rept. 108-224. 7 Hereafter, in this section, "S. 1545" refers to the bill, as reported. Differences between S. 1545, as introduced, and as reported are discussed in the next section on the Senate Judiciary Committee markup of the bill. 8 Act of June 27, 1952, ch. 477; 8 U.S.C. §1101 et seq. 9 Rules governing cancellation of removal/adjustment of status are set forth in INA §240A. 10 H.R. 3271 and H.R. 1830 contained the same unauthorized alien student provisions. CRS-4 The INA limits the number of aliens who can be granted cancellation of removal/adjustment of status in a fiscal year to 4,000. It, however, contains exceptions for certain groups of aliens. H.R. 1684 would have amended the INA to add an exception to the numerical limitation for aliens granted cancellation of removal/adjustment of status under its terms. No numerical limit would have applied under H.R. 3271, S. 8, or S. 1545. S. 1545 differed from the other bills in that it would have established a two- stage process by which aliens could obtain LPR status. Aliens granted cancellation of removal under the bill 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 full-fledged LPRs, the aliens would have had to submit an application during a specified period and meet additional requirements. The other bills would have adjusted all eligible aliens directly to full-fledged LPR status. As detailed in Appendix B, H.R. 84, H.R. 1684, H.R. 3271, S. 8, and S. 1545 varied in their eligibility criteria. Among these criteria, all five would have required continuous physical presence in the United States for a specified number of years. In the case of S. 8 and S. 1545, the continuous presence requirement would have had to be satisfied prior to the date of enactment. Under H.R. 84, H.R. 1684, and H.R. 3271, the continuous presence requirement would have needed to be met prior to the date of application for relief. All of the bills except H.R. 84 would have limited relief to aliens meeting specified age requirements. All five bills would have required a showing of good moral character. With respect to educational status, H.R. 1684 and H.R. 3271 would have required prospective beneficiaries to be enrolled at or above the 7th grade level, or enrolled in, or actively pursuing admission to, an institution of higher education in the United States. S. 8 would have granted LPR status only to individuals with a high school diploma or equivalent credential. Under S. 1545, in order to obtain conditional LPR status, aliens would have needed to gain admission to an institution of higher education or possess a high school diploma or equivalent credential. H.R. 84 contained no educational requirements. Markup of S. 1545. On October 16 and October 23, 2003, the Senate Judiciary Committee marked up S. 1545. At the October 16 session, the Committee voted in favor of an amendment in the nature of a substitute proposed by Senator Hatch for himself and Senator Durbin. The substitute amended various provisions of S. 1545, as introduced. Among the substantive amendments were changes to the confidentiality of information section. For example, the bill, as introduced, stated that information furnished by applicants could not be used for any purpose other than to make a determination on the application. The substitute amended this provision to state that information furnished by applicants could not be used to initiate removal proceedings against individuals identified in the application. At the October 23 meeting, the Judiciary Committee considered a set of amendments to S. 1545 offered by Senator Charles Grassley. Two of these amendments were the subject of debate at the markup. The first proposed to amend a provision in the bill allowing aliens who, prior to the date of enactment, met the CRS-5 requirements for both conditional resident status and removal of the condition, to petition for LPR status without first becoming conditional residents. The amendment would have made these aliens subject to the same period of conditional residence as other aliens eligible for relief under the bill. The second amendment proposed to place restrictions on the availability of federal student financial aid to aliens eligible for adjustment to LPR status under the bill. Under the amendment, these aliens would have been eligible only for specified student loan and work-study programs. Among the other amendments in the Grassley package was one that would have required beneficiaries of the bill to be registered in the Student and Exchange Visitor Information System (SEVIS), the monitoring system for foreign students.11 The Committee voted, 18-1, to approve the Grassley amendments, and voted, 16-3, to report the bill, as amended. The Committee acted, however, with the understanding that the bill would be subject to further discussion and modification prior to being reported. In S. 1545, as reported, the Grassley amendment language on federal financial assistance was modified, as described in the next section. The rest of the Grassley amendments were unchanged. Federal Postsecondary Educational Benefits. Under Title IV of the Higher Education Act of 1965, as amended,12 LPRs and certain other eligible noncitizens may receive federal student financial aid. Pell Grants and Stafford loans authorized under Title IV comprise 85% of postsecondary student aid. S. 1545, as reported, would have placed restrictions on eligibility for higher education assistance for beneficiaries of the bill's adjustment provisions. With respect to assistance provided under Title IV, it would have made aliens who adjust 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, aliens adjusting status under S. 1545 would not have been eligible for Pell Grants. H.R. 84, H.R. 1684, H.R. 3271, and S. 8, as introduced, did not contain restrictions on eligibility for federal student financial aid. An alien who adjusted to LPR status under any of these bills would have been eligible, as an LPR, for federal financial aid under Title IV. H.R. 84 and H.R. 1684 additionally would have extended this eligibility to unauthorized students who had applied for, but not yet been granted, cancellation of removal/adjustment of status. 11 For information on SEVIS, see CRS Report RL32188, Monitoring Foreign Students in the United States: The Student and Exchange Visitor Information System (SEVIS), by Alison Siskin. 12 P.L. 89-329, Nov. 8, 1965, 20 U.S.C. §1001 et seq. CRS-6 Appendix A. Comparison of Major Provisions of Bills in the 107th Congress on Unauthorized Alien Students Current Law H.R. 1563, as introduced H.R. 1582, as introduced H.R. 1918, as introduced S. 1291, as reported Postsecondary education benefits based on state residence Unauthorized aliens are Would have repealed IIRIRA Similar provision to H.R. Similar provision to H.R. Similar provision to H.R. ineligible for such §505. 1563. 1563. 1563. benefits unless equal benefits are made available to all U.S. citizens, regardless of state of residence. IIRIRA §505. Eligibility requirements for COR/AOS of aliens brought into the United States as minors No provision. Would have amended INA. Would have amended INA. Would have amended INA. Would have created a new For aliens under 18: Would For aliens under 21: Would For aliens under 21: Similar COR/AOS authority. For [INA §240A is the Act's have required continuous have required continuous requirements to H.R. 1582. aliens under 21: Would have COR/AOS section.] physical presence in U.S. for physical presence in U.S. for required continuous physical three years preceding five years preceding presence in U.S. for five years application; good moral application; good moral preceding enactment; good character; and determination character; and enrollment in moral character; and that removal would cause secondary school or graduation from secondary extreme hardship to alien, attendance/pursuit of school or equivalent. alien's child, or alien's parent. admission to institution of higher education. CRS-7 Current Law H.R. 1563, as introduced H.R. 1582, as introduced H.R. 1918, as introduced S. 1291, as reported For aliens age 18 or older: For aliens age 21-24: Same, For aliens age 21 or older: For aliens age 21 or older: Same, except would have except would have required Would have required that Would have required that required continuous physical continuous physical presence application be filed within 120 alien have met requirements presence in U.S. for five years in U.S. for five years days of effective date of for aliens under 21 at anytime preceding application, preceding application, regulations; that alien have in the four years prior to including three years before including five years before met requirements for aliens enactment; and that alien be age 18. age 21. under 21 based on application enrolled in or have graduated filed anytime in the four years from institution of higher prior to enactment; and that education. alien be enrolled in or have graduated from institution of higher education. Special provisions for aliens potentially eligible for COR/AOS No provision. No provision. No provision. No provision. Would have granted work authorization and protection from removal to otherwise eligible aliens who had not yet met requirement of secondary school graduation. CRS-8 Current Law H.R. 1563, as introduced H.R. 1582, as introduced H.R. 1918, as introduced S. 1291, as reported Adjustment of status of minor children of alien No provision. No provision. Would have provided for No provision. No provision. adjustment of status of minor children of aliens granted COR/AOS. Application for relief No provision. No provision. Alien could have applied Similar provision to H.R. Similar provision to H.R. affirmatively for relief 1582. 1582. without being placed in removal proceedings. Numerical limit on COR/AOS There is an annual limit Current law. Would have amended INA to Similar provision to H.R. No numerical limit would of 4,000 on the number exempt aliens granted 1582. have applied. of aliens who can be COR/AOS under the bill from granted COR/AOS. INA the limit. §240A(e)(1). CRS-9 Current Law H.R. 1563, as introduced H.R. 1582, as introduced H.R. 1918, as introduced S. 1291, as reported Federal postsecondary education benefits Aliens who are not Would have amended Would have considered alien Similar provision to H.R. Current law. "qualified aliens" are definition of qualified alien to with pending application for 1563. ineligible for most include alien granted COR/AOS under the bill to be federal public benefits, COR/AOS under the bill or qualified alien for purposes of including postsecondary alien with a pending receiving postsecondary education benefits. P.L. application for COR/AOS. education benefits. 104-193, §401. Unauthorized aliens are not qualified aliens. P.L. 104-193, §431(b). CRS-10 Appendix B. Comparison of Major Provisions of Bills in the 108th Congress on Unauthorized Alien Students S. 8 (Title III, Subtitle D), Current Law H.R. 84, as introduced H.R. 1684, as introduced H.R. 3271 , as introduced S. 1545, as reported as introduced Postsecondary education benefits based on state residence Unauthorized Would have repealed Similar provision to H.R. Current law. Similar provision to H.R. Similar provision to aliens are IIRIRA §505. 84. 84. H.R. 84. ineligible for such benefits unless equal benefits are made available to all U.S. citizens, regardless of state of residence. IIRIRA §505. Eligibility requirements for adjustment of status (AOS) of aliens brought into the United States as minors No provision. Would have amended Would have amended Would have created a Would have created a new Would have created a INA §240A. For aliens INA §240A. For aliens new AOS authority. COR/AOS authority. For new COR/AOS [INA §240A is under 18: Would have under 21: Would have Would have required aliens under 21: Would authority. For the Act's required continuous required physical filing of application have required attainment COR/conditional cancellation of physical presence in presence in U.S. on date during specified period; of age 12 by enactment; permanent resident removal(COR)/ U.S. for three years of enactment; continuous alien under age 25 on continuous physical status: Would have AOS section.] preceding application; physical presence for five application date; presence in U.S. for five required alien under age good moral character; years preceding presence in U.S. on date years preceding 16 at initial entry; determination that application; good moral of enactment; continuous enactment; good moral continuous physical removal would result in character; enrollment at presence in U.S. for five character; high school presence in U.S. for five CRS-11 S. 8 (Title III, Subtitle D), Current Law H.R. 84, as introduced H.R. 1684, as introduced H.R. 3271 , as introduced S. 1545, as reported as introduced extreme hardship to or above 7th grade level years preceding diploma or equivalent; years preceding alien, alien's child, or or enrollment in/pursuit application; good moral and alien not inadmissible enactment; good moral alien's parent; and alien of admission to character; enrollment at or deportable on character; admission to not inadmissible or institution of higher or above 7th grade level applicable grounds. institution of higher deportable on applicable education (IHE); and or enrollment in/pursuit For aliens age 21 or education, or high grounds. alien not inadmissible or of admission to older: Would have school diploma or deportable on applicable institution of higher required that alien would equivalent; alien not For aliens age 18 or grounds. education; and alien not have met requirements for inadmissible or older: Same, except For aliens age 21 or inadmissible or aliens under 21 at anytime deportable on applicable would have required older: Would have deportable on applicable in the four years prior to grounds; and alien never continuous physical required filing of grounds. enactment; and that alien under final order of presence in U.S. for five application during be enrolled in, or have exclusion, deportation, years preceding specified period; that graduated from, IHE. or removal. application, including alien would have met three years before age requirements for aliens 18. under 21 based on application filed anytime in the four years prior to enactment; and that alien be enrolled in, or have graduated from, IHE. CRS-12 S. 8 (Title III, Subtitle D), Current Law H.R. 84, as introduced H.R. 1684, as introduced H.R. 3271 , as introduced S. 1545, as reported as introduced Requirements for removal of condition on LPR status No provision. No provision. No provision. No provision. No provision. Would have required filing of petition during specified period; good moral character; alien not inadmissible or deportable on applicable grounds; no abandonment of U.S. residence; names of all U.S. secondary schools attended; and one of the following: (1) degree from IHE or completion of two years in good standing in bachelor's (or higher) degree program; or (2) two years of service in U.S. Armed Forces. CRS-13 S. 8 (Title III, Subtitle D), Current Law H.R. 84, as introduced H.R. 1684, as introduced H.R. 3271 , as introduced S. 1545, as reported as introduced Grounds for termination of conditional LPR status No provision. No provision. No provision. No provision. No provision. Would have terminated status if alien was not of good moral character; was inadmissible or deportable on applicable grounds; had become a public charge; had received an other-than honorable discharge from the U.S. Armed Forces; or if Secretary of Homeland Security determined information in petition to remove condition was not true. CRS-14 S. 8 (Title III, Subtitle D), Current Law H.R. 84, as introduced H.R. 1684, as introduced H.R. 3271 , as introduced S. 1545, as reported as introduced Special provisions for aliens potentially eligible for relief No provision. No provision. No provision. Would have granted Would have granted Would have granted protection from removal protection from removal protection from removal and work authorization and work authorization to and work authorization to aliens with prima facie otherwise eligible aliens to otherwise eligible case of eligibility. who had not yet met high aliens who had not yet school graduation met high school requirement. graduation requirement; were at least age 12; and were enrolled full-time in primary or secondary school. Application for relief No provision. No provision. Alien could have applied No provision. Similar provision to H.R. Similar provision to affirmatively for relief 1684. H.R. 1684. without being placed in removal proceedings. CRS-15 S. 8 (Title III, Subtitle D), Current Law H.R. 84, as introduced H.R. 1684, as introduced H.R. 3271 , as introduced S. 1545, as reported as introduced Numerical limits There is an Current law. Would have amended Would have exempted Would not have counted Similar provision to S. annual limit of INA to exempt aliens aliens adjusted to LPR aliens granted COR/AOS 8. 4,000 on the granted COR/AOS under status under bill from under bill against INA number of aliens bill from INA numerical INA numerical limits. numerical limit on COR/ who can be limit on COR/AOS. AOS. granted COR/AOS. INA §240A(e)(1). There are annual limits on the number of aliens who can acquire LPR status. INA §201, §202. CRS-16 S. 8 (Title III, Subtitle D), Current Law H.R. 84, as introduced H.R. 1684, as introduced H.R. 3271 , as introduced S. 1545, as reported as introduced Federal postsecondary education benefits Aliens who are Would have amended Similar provision to H.R. Current law. Current law. With respect to not "qualified definition of qualified 84. assistance under Title aliens" are alien to include alien IV of Higher Education ineligible for granted COR/AOS Act, would have made most federal under the bill or alien aliens who adjusted public benefits, with a pending status under bill eligible including application for only for student loans, postsecondary COR/AOS. work-study programs, education and services. benefits. P.L. 104-193, §401. Unauthorized aliens are not qualified aliens. P.L. 104-193, §431(b). ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31365