Unauthorized Alien Students: Issues and "DREAM Act" Legislation

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The November 2008 election results have sparked renewed interest in immigration reform among
reform supporters. There has been speculation that there may be an early effort in 2009 to enact
legislation, 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 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.
Two similar stand-alone DREAM Act bills were introduced in the 110^th Congress (S. 774 and
H.R. 1275). Like DREAM Act bills introduced in prior Congresses, these measures would have
repealed the 1996 provision and enabled eligible unauthorized students to adjust to LPR status
through a two-stage process. Aliens granted cancellation of removal under the bills would have
been adjusted initially to conditional permanent resident status. To have the condition removed
and become full-fledged LPRs, the aliens would have needed to meet additional requirements.
The S. 774 provisions were also included in H.R. 1645, known as the STRIVE Act. A different
version of the DREAM Act was included in the comprehensive immigration bill that the Senate
considered, but failed to invoke cloture on, in June 2007 (S. 1639).
In October 2007, the Senate again considered, but failed to invoke cloture on, another version of
the DREAM Act (S. 2205). While S. 2205 was similar in many ways to S. 774, H.R. 1275, and
DREAM Act bills introduced in earlier Congresses, in some respects it was notably different.
Most significantly, S. 2205 would not have repealed the 1996 provision that discourages states
from granting certain postsecondary educational benefits to unauthorized aliens based on state
residence.
This report will be updated as legislative developments occur.

Introduc tion ..................................................................................................................................... 1
Estimates of Potential DREAM Act Beneficiaries..........................................................................2
Higher Education Benefits and Immigration Status........................................................................3
1996 Provision.................................................................................................................................3
Action in the 110^th Congress...........................................................................................................4
S. 774 and H.R. 1275................................................................................................................4
H.R. 1645..................................................................................................................................5
H.R. 1221..................................................................................................................................5
S. 1639......................................................................................................................................6
S. 2205......................................................................................................................................7
Pro/Con Arguments.........................................................................................................................8
Appendix. Action in the 109^th Congress........................................................................................10
Author Contact Information...........................................................................................................11

The November 2008 election results have sparked renewed interest in immigration reform among
reform supporters. While it is unclear at this time what type of immigration reform agenda, if any,
President-elect Obama’s Administration and congressional leaders will pursue, there has been
speculation that there may be an early effort to enact legislation, commonly referred to as the ¹
“DREAM Act,” to enable certain unauthorized alien students to legalize their status. Legalization
of unauthorized (illegal) aliens—termed “earned legalization” by supporters and “amnesty” by
opponents—has proven to be highly controversial in recent years. And it may become even more
controversial if economic hard times and rising unemployment rates result in increased opposition
to granting legal status to potential competitors for limited job opportunities. While still
controversial, proposals for legalization of the subpopulation of unauthorized aliens who were
brought, as children, to live in the United States by their parents or other adults have enjoyed a
broad base of support in recent Congresses.
While in the United States, unauthorized alien children are able to receive free public education ²
through high school. Many unauthorized immigrants who graduate from high school and want to
attend college, however, face various obstacles. Among them, a provision enacted in 1996 as part ³
of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) discourages states
and localities from granting unauthorized aliens certain “postsecondary education benefits.” More
broadly, as unauthorized aliens, they are unable to work legally and are subject to removal from ⁴
the United States.
In recent years, multiple bills have been introduced in Congress to provide relief to unauthorized
alien students. In most cases, these bills proposed to repeal the 1996 provision and enable certain
unauthorized alien students to adjust to legal permanent resident (LPR) status in the United ^th^th
States. In both the 107 and 108 Congresses, the Senate Judiciary Committee reported bills of
this type, known as the Development, Relief, and Education for Alien Minors Act, or the
DREAM Act. In this report, following common usage, the term “DREAM Act” is used to refer to
bills to provide relief to unauthorized alien students whether or not they carry that name. DREAM ^th
Act bills were introduced in the 109 Congress, one of which was incorporated into the
immigration reform bill passed by the Senate in May 2006 (S. 2611). DREAM Act legislation ^th
was again introduced in the 110 Congress, and DREAM Act provisions were included in the
immigration bill considered by the Senate in June 2007 (S. 1639). The Senate also considered a
stand-alone DREAM Act bill (S. 2205) in October 2007. Neither of these bills was passed by the
Senate.

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As discussed below, DREAM Act bills introduced in recent Congresses would enable certain
unauthorized alien students to obtain LPR status in the United States, in the case of most bills
through a two-stage process. Requirements to obtain conditional LPR status (stage 1) typically
include residence of at least five years in the United States and a high school diploma (or the
equivalent) or admission to an institution of higher education in the United States. Requirements
to have the condition removed and thereby become a full-fledged LPR (stage 2) typically include
acquisition of a degree from an institution of higher education in the United States, completion of
at least two years in a bachelor’s or higher degree program, or service in the uniformed services
for at least two years.
In 2003, using data from the March 2000, March 2001, and March 2002 Current Population
Surveys (CPS), Census 2000, and supplementary research, Jeffrey S. Passel of the Pew Hispanic ⁵
Center made estimates of the number of potential DREAM Act beneficiaries. According to his
analysis, each year roughly 65,000 undocumented immigrants graduate from high school who
have lived in the United States for at least five years. Passel further estimated as part of this 2003
analysis that there were about 7,000 to 13,000 unauthorized aliens enrolled in public colleges and
universities in the United States who had lived in the United States for at least five years and
graduated from U.S. high schools.
In 2006, using data from Census 2000 and other sources, the Migration Policy Institute (MPI)
published estimates of the population eligible for legal status under DREAM Act proposals before ^th⁶
the 109 Congress (discussed in the Appendix). These bills, like earlier measures, would have
established a two-stage process for unauthorized alien students to obtain LPR status. The same
requirements outlined above to obtain conditional LPR status and to have the condition removed
would have applied under these bills. According to the MPI estimates, 360,000 unauthorized high
school graduates between the ages of 18 and 24 would have been immediately eligible for ⁷
conditional LPR status. Of this total, an estimated 50,000 were enrolled in college and thus were
considered likely to be eligible for full-fledged LPR status.
In 2007, using data from the March 2007 CPS and other sources, the Center for Immigration
Studies (CIS) estimated the number of potential beneficiaries under the DREAM Act bill
considered in the Senate in October 2007 (S. 2205). CIS put the number of potential beneficiaries
at 2.1 million based on the physical presence and age requirements in the bill, as described ⁸
below.

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Unauthorized aliens are neither entitled to nor prohibited from admission to postsecondary
educational institutions in the United States. To gain entrance to these institutions, these students
must meet the same requirements as any other student, which vary depending on the institution
and may include possessing a high school diploma, passing entrance exams, and surpassing a
high school grade point average (GPA) threshold. Although admissions applications for most
colleges and universities request that students provide their Social Security numbers, this
information typically is not required for admission.
Even if they are able to gain admission, however, unauthorized alien students often find it
difficult, if not impossible, to pay for higher education. Under the Higher Education Act (HEA) of ⁹
1965, as amended, they are ineligible for federal financial aid. In most instances, unauthorized
alien students are likewise ineligible for state financial aid. Furthermore, as explained in the next
section, they also may be ineligible for in-state tuition.

Section 505 of IIRIRA places restrictions on state provision of educational benefits to
unauthorized aliens. It directs that an unauthorized alien
^sh^allⁿ^o^{t b}^e^eli^g^ib^{le o}ⁿ^t^h^{e b}^a^sⁱ^{s o}^f^r^e^sid^eⁿ^ce^wⁱ^thⁱⁿ^a^{State (}^o^r^{a p}^o^{litical su}^b^dⁱ^vⁱ^sioⁿ⁾^f^o^r
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^elig^ib^{le f}^o^r^su^c^h^{a b}^eⁿ^e^f^{it (}ⁱⁿⁿ^o^{less an}^a^m^o^uⁿ^{t, d}^u^r^a^tioⁿ^,^an^d^sco^p^e⁾^wⁱ^t^h^o^u^t^r^e^g^a^r^d^to
^w^h^et^h^e^r^th^{e citize}ⁿ^o^rⁿ^a^tioⁿ^a^l^{is su}^c^h^{a r}^e^sid^eⁿ^t^.
There is disagreement about the meaning of this provision, and no authoritative guidance is ¹⁰
available in either congressional report language or federal regulations. The conference report
on the bill containing IIRIRA did not explain §505. (A conference report on a predecessor IIRIRA
bill, which contained a section identical to §505, described the section as “provid[ing] that illegal ¹¹
aliens are not eligible for in-state tuition rates at public institutions of higher education.”) Some
interested parties have argued that Congress exceeded its authority in §505 by legislating on how
states can dispense state benefits.
Although §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. A key issue in this
debate is whether it is possible to grant in-state tuition to unauthorized students (and not to all
citizens) without violating §505. Various states have attempted to do this. For example, a

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California law passed in 2001 makes unauthorized aliens eligible for in-state tuition at state ¹²
community colleges and California State University campuses. The measure, however, bases
eligibility on criteria that do not explicitly include state residency. To qualify for in-state tuition, a
student must have attended high school in California for at least three years and graduated. An
unauthorized alien student is also required to file an affidavit stating that he or she has filed an
application to legalize his or her status or will file such an application as soon as he or she is
eligible. California officials have argued that by using eligibility criteria other than state
residency, their law does not violate the §505 prohibition on conferring educational benefits on
the basis of state residency. The federal courts have not yet ruled on whether state laws that ¹³
authorize in-state tuition for unauthorized students violate §505.

DREAM Act legislation was introduced in the 110^th Congress, both in stand-alone bills and as
part of larger comprehensive immigration reform measures. A selected number of these bills are
described here. Neither the House or Senate passed any of these bills. As discussed below, the
Senate failed to invoke cloture on two measures: S. 1639, a bipartisan comprehensive
immigration reform proposal that included a DREAM Act title, and S. 2205, a stand-alone
DREAM Act bill.
The DREAM Act of 2007 (S. 774), introduced by Senator Durbin, and the American Dream Act
(H.R. 1275), introduced by Representative Berman, were similar, but not identical, measures.
Both had bipartisan cosponsors. Both also were highly similar, respectively, to S. 2075 and H.R. ^th

5131 in the 109 Congress (see the Appendix).

Like their counterparts in the 109^th Congress, S. 774 and H.R. 1275 would have repealed IIRIRA
§505 and thereby eliminated the restriction on state provision of postsecondary educational
benefits to unauthorized aliens. Both bills also would have enabled eligible unauthorized students
to adjust to LPR status in the United States through the cancellation of removal procedure
described above. Under S. 774 and H.R. 1275, aliens could have affirmatively applied for
cancellation of removal without being placed in removal proceedings. There would have been no
limit on the number of aliens who could be granted cancellation of removal/adjustment of status
under the bills.
To be eligible for cancellation of removal/adjustment of status under S. 774 or H.R. 1275, an
alien would have had to demonstrate that he or she had been physically present in the United
States for a continuous period of not less than five years immediately preceding the date of
enactment and had not yet reached age 16 at the time of initial entry. Both bills also would have
required the alien to demonstrate that he or she had been admitted to an institution of higher
education in the United States, or had earned a high school diploma or the equivalent in the
United States.

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The eligibility requirements with respect to deportability from the United States were the same in
S. 774 and H.R. 1275, while the requirements with respect to inadmissibility to the country
differed somewhat. The INA, as noted above, enumerates classes of inadmissible and deportable
aliens. To be eligible for cancellation of removal/adjustment of status under either S. 774 or H.R.
1275, an alien would have had to demonstrate that he or she was not inadmissible or deportable
on INA smuggling, criminal, or security grounds. S. 774 would have further required that the
alien not be inadmissible on international child abduction grounds. In addition, to be eligible for
cancellation of removal/adjustment of status under S. 774, an alien could never have been under a
final administrative or judicial order of exclusion, deportation, or removal, with some exceptions.
Aliens granted cancellation of removal under S. 774 or H.R. 1275 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 a full-fledged LPR, an alien would have had to submit an application during a specified
period and meet additional requirements. Among these requirements, the alien would have needed
to demonstrate good moral character during the period of conditional permanent residence; could
not have abandoned his or her U.S. residence; and would have needed either a college degree (or
to have completed at least two years in a bachelor’s or higher degree program) in the United
States, or to have served in the uniformed services for at least two years.
Both S. 774 and H.R. 1275 would have placed restrictions on the eligibility of aliens who
adjusted to LPR status under their provisions, for federal student financial aid under Title IV of
the Higher Education Act of 1965, as amended. S. 774 would have made aliens who adjusted 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, they would not have been eligible for federal Pell Grants or federal
supplemental educational opportunity grants. H.R. 1275 would have imposed similar restrictions
on eligibility for federal student financial aid, but they would have been temporary. Aliens
adjusting status under the House bill would have been ineligible for federal Pell Grants and
federal supplemental educational opportunity grants while in conditional permanent resident
status. Once the conditional basis was removed and they became full-fledged LPRs, these
restrictions would no longer have applied.
The Security Through Regularized Immigration and a Vibrant Economy Act of 2007, or the
STRIVE Act of 2007 (H.R. 1645), introduced by Representative Gutierrez for himself and a
bipartisan group of cosponsors, contained DREAM Act provisions in Title VI, Subtitle B. These
provisions were nearly identical to S. 774, as discussed above.
The Education Access for Rightful Noncitizens (EARN) Act (H.R. 1221), introduced by
Representative Gillmor, was a version of the DREAM Act. It was similar in some ways to the
bills described above and significantly different in other respects. Like S. 774, H.R. 1275, and
H.R. 1645, it would have enabled eligible unauthorized students to adjust to LPR status in the
United States through the cancellation of removal procedure described above. Under H.R. 1221,
as under these other bills, aliens could have affirmatively applied for cancellation of removal

without being placed in removal proceedings, and there would have been no limit on the number
of aliens who could be granted cancellation of removal/adjustment of status as specified.
Many of the eligibility requirements for cancellation of removal/adjustment of status—including
the physical presence, age at entry, and educational requirements—were the same under H.R.
1221, S. 774, H.R. 1275, and H.R. 1645. There were differences, however, with respect to the
INA grounds of inadmissibility and deportability. Under H.R. 1221, as under these other bills,
aliens would have been ineligible for cancellation of removal/adjustment of status if they were
inadmissible or deportable on smuggling, criminal, or security grounds. They also would have
been ineligible under H.R. 1221 if they were inadmissible on other grounds, including failure to
attend a removal proceeding, or deportable on other grounds, including marriage fraud. In
addition, aliens would have been ineligible for cancellation of removal/adjustment of status under
H.R. 1221, as under S. 774 and H.R. 1645, if they had ever been under a final administrative or
judicial order of exclusion, deportation, or removal, with some exceptions.
As under S. 774, H.R. 1275, and H.R. 1645, aliens granted cancellation of removal under H.R.
1221 would have been adjusted initially to a conditional permanent resident status, which would
have been valid for six years. To have the condition removed and become a full-fledged LPR, an
alien would have had to submit an application during a specified period and meet additional
requirements regarding good moral character, no abandonment of U.S. residence, and higher
education or military service, among others, as described above in the “S. 774 and H.R. 1275”
section.
At the same time, H.R. 1221 did not contain certain key provisions included in S. 774, H.R. 1275,
and H.R. 1645. Unlike these other bills, it would not have placed restrictions on the eligibility of
aliens who adjusted to LPR status under its terms, for federal student financial aid. Also unlike S.
774, H.R. 1275, and H.R. 1645, it would not have repealed IIRIRA §505 and thus would not have
eliminated the restriction on state provision of postsecondary educational benefits to unauthorized
aliens.
A version of the DREAM Act was included in a bipartisan comprehensive immigration reform
bill (S. 1639) introduced by Senator Kennedy for himself and Senator Specter. The DREAM Act
provisions comprised Title VI, Subtitle B, of S. 1639. The Senate failed to invoke cloture on the
measure in June 2007, and the bill was pulled from the Senate floor.
The S. 1639 version of the DREAM Act was substantially different than the other DREAM Act ^th
bills in the 110 Congress. The DREAM Act provisions in S. 1639 were tied to other provisions
in Title VI of the bill that would have enabled certain unauthorized aliens in the United States to
obtain legal status under a new “Z” nonimmigrant visa category. Among the eligibility
requirements for Z status, an alien would have had to be continuously physically present in the
United States since January 1, 2007, and could not have been lawfully present on that date under
any nonimmigrant classification or any other immigration status made available under a treaty or ¹⁴
other multinational agreement ratified by the Senate.

¹⁴^For^f^u^r^t^he^r^inf^o^r^m^a^{tion a}^b^o^u^{t t}^h^e^pr^o^pos^e^d^{Z c}^l^a^s^sⁱ^fⁱ^c^a^tions^{, s}^e^e^C^R^S^R^e^por^t^R^L³²⁰⁴⁴^,^Immigra^tio^{n: Po}^lic^y
^C^ons^ide^r^a^tio^ns^Re^la^te^{d t}^o^G^u^e^s^t^W^o^r^k^e^r^Pr^ogr^am^s^{, by}^A^ndor^r^a^B^r^uno^.

S. 1639’s DREAM Act title would have established a special adjustment of status mechanism for ¹⁵
aliens who were determined to be eligible for, or who had been issued, probationary Z or Z
visas, and who met other requirements, including being under age 30 on the date of enactment,
being under age 16 at the time of initial entry into the United States, and having either acquired a
college degree (or completed at least two years in a bachelor’s or higher degree program) in the
United States or served in the uniformed services for at least two years. The Secretary of the
Department of Homeland Security could have begun adjusting the status of eligible individuals to ¹⁶
LPR status three years after the date of enactment. Unlike under the other DREAM Act bills
discussed above, DREAM Act beneficiaries under S. 1639 would not have adjusted status
through the cancellation of removal procedure and would not have been adjusted initially to
conditional permanent resident status.
In other respects, the DREAM Act adjustment of status provisions in S. 1639 were similar to ^th
those in the other DREAM Act bills before the 110 Congress. As under the other bills, there
would have been no limit on the number of aliens who could have adjusted to LPR status under S.
1639. With respect to federal student financial aid, beneficiaries of the S. 1639 provisions, like
beneficiaries under S. 774 and H.R. 1645, would have been eligible for student loans, federal
work-study programs, and services (such as counseling, tutorial services, and mentoring), subject ¹⁷
to the applicable requirements, but would not have been eligible for grants.
S. 1639, like most other DREAM Act bills before the 110^th Congress, coupled adjustment of
status provisions for unauthorized students with provisions addressing IIRIRA §505, which, as
explained above, places restrictions on state provision of educational benefits to unauthorized
aliens. Unlike S. 774, H.R. 1275, and H.R. 1645, however, S. 1639 would not have completely
repealed IIRIRA §505. Instead, §616(a) of S. 1639 proposed to make §505 inapplicable with
respect to aliens with probationary Z or Z status.
Another version of the DREAM Act (S. 2205) was introduced in October 2007 by Senator
Durbin. It contained legalization provisions similar to those in S. 774, H.R. 1275, H.R. 1645, and
H.R. 1221. Under S. 2205, eligible unauthorized students could have adjusted to LPR status
through the cancellation of removal procedure described above. Aliens could have applied
affirmatively for cancellation of removal without being placed in removal proceedings, and there
would have been no limit on the number of aliens who could have been granted cancellation of
removal/adjustment of status as specified.

¹⁵^Un^d^e^{r S}^.¹⁶³⁹^§⁶⁰^1,^cert^aⁱⁿ^applⁱ^can^t^s^f^o^{r Z}^st^at^u^s^w^o^u^l^d^h^a^{ve b}^e^en^elⁱ^gⁱ^b^l^e^t^o^recei^{ve p}^r^o^b^a^tⁱ^oⁿ^a^r^y^b^eⁿ^e^fⁱ^t^sⁱⁿ^t^h^e
^f^o^r^m^of^em^plo^y^m^e^{nt a}^u^thor^iz^a^tio^{n pe}ⁿ^dⁱⁿ^g^fⁱ^na^{l a}^d^ju^dic^a^tion^of^th^eⁱ^r^a^pplic^a^tio^ns^.
¹⁶^Uⁿ^lik^e^{Z a}^lie^ns^a^p^plyⁱ^ng^{to a}^d^j^u^s^t^{to L}^P^R^s^t^a^t^us^un^de^r^S.¹⁶³⁹^§⁶⁰²^{, be}^ne^fⁱ^cⁱ^a^r^ie^s^of^the^D^R^E^A^{M A}^c^{t pr}^ov^is^io^ns
^w^o^u^l^d^no^t^h^a^{ve b}^een^su^b^j^ect^t^o^a^“b^{ack o}^f^t^h^{e l}ⁱⁿ^{e” p}^r^o^vⁱ^sⁱ^o^{n re}^q^uⁱ^r^ing^the^m^{to w}^a^{it to a}^d^just^sta^t^us^until^im^mⁱ^g^r^aⁿ^t
^vⁱ^sa^{s be}^c^a^m^e^a^v^a^ila^ble^{to o}^t^he^rs^w^hose^pe^titions^ha^d^be^eⁿ^f^ile^{d by}^a^spe^cⁱ^fⁱ^e^d^da^te^{. Unde}^{r S}^.¹⁶³⁹^§⁶⁰^2(a^)(5),^a^Z
^a^lie^{n c}^oul^d^{not a}^d^jus^t^s^t^a^t^us^t^o^t^h^a^t^of^aⁿ^L^P^R^un^de^r^§⁶⁰²^unti^l³⁰^d^a^y^s^af^te^r^aⁿⁱ^m^mⁱ^g^r^aⁿ^{t v}ⁱ^s^a^be^c^a^m^e^a^v^a^ila^ble^f^o^r
^a^pprov^e^d^f^a^mⁱ^l^y^-ba^s^e^d^{or e}^m^ploy^m^e^nt-ba^s^e^d^pe^titi^{ons f}^ile^d^be^f^o^re^Ma^y^{1, 200}^5.^{For f}^u^rthe^r^inf^o^rm^a^t^{ion a}^b^o^u^{t t}^h^e
^pe^r^m^aⁿ^eⁿ^{t im}^mⁱ^g^r^a^{tion sy}^s^t^em^{, se}^e^C^R^S^R^e^por^{t R}^L³²²³^5,^U^.^S.^I^m^mⁱ^gr^ati^{on Polic}^y^on^Pe^r^m^aⁿ^eⁿ^{t A}^d^mⁱ^s^sⁱ^ons^{, b}^y
^{Ruth Elle}ⁿ^W^a^se^m^.
¹⁷^A^lie^ns^{in pr}^oba^ti^ona^r^y^{Z or}^Z^no^nim^m^ig^r^a^{nt s}^t^a^t^us^w^{ho m}^e^{t c}^e^r^taⁱⁿ^r^e^qu^ir^e^m^eⁿ^ts^sⁱ^m^ila^r^l^y^w^{ould h}^a^v^e^be^eⁿ^e^lig^ible
^f^o^r^s^t^ude^nt^loaⁿ^s^,^f^e^de^r^a^l^w^o^r^k^-^s^t^udy^pr^og^r^a^m^s^{, a}^{nd s}^e^r^v^ic^e^s^{, but}ⁿ^o^{t g}^r^aⁿ^ts^.

To be eligible for cancellation of removal/adjustment of status under S. 2205, as under the bills
listed above, an alien would have had to demonstrate, among other requirements, that he or she
had been physically present in the United States for a continuous period of not less than five years
immediately preceding the date of enactment, had not yet reached age 16 at the time of initial
entry, and had been admitted to an institution of higher education in the United States or had
earned a high school diploma or the equivalent in the United States. In addition, in a requirement
not in S. 774, H.R. 1275, H.R. 1221, or H.R. 1645 but included in S. 1639, the alien would also
have had to show that he or she was under age 30 on the date of enactment. The eligibility
requirements in S. 2205 with respect to the INA grounds of inadmissibility and deportablity were
similar to those in H.R. 1221, as discussed above. Also like H.R. 1221 and most of the other ^th
DREAM Act bills before the 110 Congress, S. 2205 would have made ineligible, aliens who had
ever been under a final administrative or judicial order of exclusion, deportation, or removal, with
some exceptions.
As under S. 774, H.R. 1275, H.R. 1645, and H.R. 1221, an alien granted cancellation of removal
under S. 2205 would have been adjusted initially to conditional permanent resident status. To
have the condition removed and become a full-fledged LPR, the alien would have had to meet
additional requirements, including acquisition of a college degree (or completion of at least two
years in a bachelor’s or higher degree program) or service in the uniformed services for at least
two years.
A key difference between S. 2205 on the one hand and S. 774, H.R. 1275, and H.R. 1645 on the
other was that S. 2205, like H.R. 1221, would not have repealed IIRIRA §505 and thus would not
have eliminated the restriction on state provision of postsecondary educational benefits to
unauthorized aliens. On October 24, 2007, the Senate voted on a motion to invoke cloture on S.

2205. The motion failed on a vote of 52 to 44.

Those who favor DREAM Act proposals to repeal §505 and grant LPR status to unauthorized
alien students offer a variety of arguments. They maintain that it is both fair and in the U.S.
national interest to enable unauthorized alien students who graduate from high school to continue
their education. And they emphasize that large numbers will be unable to do so unless they are
eligible for in-state tuition rates at colleges in their states of residence.
Advocates for unauthorized alien students argue that many of them were brought into the United
States at a very young age and should not be held responsible for the decision to enter the country
illegally. According to these advocates, many of the students have spent most of their lives in the
United States and have few, if any, ties to their countries of origin. They argue that these special
circumstances demand that the students be granted humanitarian relief in the form of LPR status.
Those who oppose making unauthorized alien students eligible for in-state tuition or legal status
emphasize that the students and their families are in the United States illegally and should be
removed from the country. They object to using U.S. taxpayer money to subsidize the education
of individuals (through the granting of in-state tuition rates) who are in the United States in
violation of the law. They maintain that funding the education of these students should be the
responsibility of their parents or their home countries. They further argue that it is unfair to
charge unauthorized alien students in-state tuition, while charging some U.S. citizens higher out-
of-state rates.

More broadly, these opponents argue that granting benefits to unauthorized alien students rewards
lawbreakers and, thereby, undermines the U.S. immigration system. In their view, the availability ¹⁸
of benefits, especially LPR status, will encourage more illegal immigration into the country.

¹⁸^For^pr^o^aⁿ^d^c^{on a}^r^g^u^m^e^nts^,^s^e^e^,^f^o^r^e^x^am^ple^,^L^our^de^s^Me^dr^aⁿ^{o, “}^A^D^r^eam^D^e^f^e^r^r^e^d^,”^Ar^iz^ona^D^a^il^y^Star^{, Ma}^y^28,
²⁰⁰^6;^Eu^nic^e^Mosc^os^{o, “}^B^ill^{to A}ⁱ^{d Im}^mⁱ^g^r^aⁿ^{t Stude}^{nts C}^o^u^l^d^P^a^s^s^{in Ne}^w^Cong^re^ss,”^Cox^Ne^w^s^Se^rv^ic^e^,^De^c^e^m^be^r
¹⁷^,²⁰⁰⁶^;^and^Kariⁿ^a^G^oⁿ^zal^ez,^“L^e^g^al^S^t^at^u^s^f^o^{r S}^t^ud^en^t^s^,^”^C^h^att^ano^og^a^Tim^e^s^Fr^e^e^Pr^e^s^s^{, D}^e^c^e^m^b^e^r²¹^{, 2}⁰⁰⁶^.

Bills to provide relief to unauthorized alien students by repealing the 1996 provision and enabling
certain unauthorized alien students to obtain LPR status have been introduced in recent ^th^th
Congresses. In both the 107 and 108 Congresses, the Senate Judiciary Committee reported ¹⁹^th
such bills, known as the DREAM Act. In the 109 Congress, Senator Durbin introduced the
Development, Relief, and Education for Alien Minors (DREAM) Act of 2005 (S. 2075) in the
Senate. Representative Diaz-Balart introduced the American Dream Act (H.R. 5131) in the
House. Both bills had bipartisan cosponsors.
Both S. 2075 and H.R. 5131 would have repealed IIRIRA §505 and thereby eliminated the
restriction on state provision of postsecondary educational benefits to unauthorized aliens. Both
bills also would have enabled eligible unauthorized students to adjust to LPR status in the United
States through an immigration procedure known as cancellation of removal. Cancellation of
removal is a discretionary form of relief authorized by the Immigration and Nationality Act ²⁰
(INA) that an alien can apply for while in removal proceedings before an immigration judge. If ²¹
cancellation of removal is granted, the alien’s status is adjusted to that of an LPR. S. 2075 and
H.R. 5131 would have allowed aliens to affirmatively apply for cancellation of removal without
being placed in removal proceedings. There would have been no limit on the number of aliens
who could be granted cancellation of removal/adjustment of status under the bills.
Among the eligibility requirements for cancellation of removal/adjustment of status in both S.
2075 and H.R. 5131, the alien would have had to demonstrate that he or she had been physically
present in the United States for a continuous period of not less than five years immediately
preceding the date of enactment and had not yet reached age 16 at the time of initial entry. The
alien also would have been required to demonstrate that he or she had been admitted to an
institution of higher education in the United States, or had earned a high school diploma or the
equivalent in the United States.
The eligibility requirements for cancellation of removal/adjustment of status in S. 2075 and H.R.
5131 differed with respect to the applicable grounds of inadmissibility and deportability. Under
the INA, except as otherwise provided, aliens who are inadmissible under specified grounds, such
as health-related grounds, criminal grounds, or security grounds, are ineligible to receive visas
from the Department of State or to be admitted to the United States by the Department of ²²²³
Homeland Security. The INA similarly enumerates classes of deportable aliens. S. 2075 and
H.R. 5131 each specified which of the INA grounds of inadmissibility and deportability would
have applied to aliens seeking to adjust status under its provisions. A greater number of these
grounds would have applied under S. 2075 than H.R. 5131. In addition, to be eligible under S.

2075, an alien could never have been under a final administrative or judicial order of exclusion,

deportation, or removal, with some exceptions.

¹⁹^For^f^u^r^t^he^r^inf^o^r^m^a^{tion a}ⁿ^d^aⁿ^a^l^y^s^is^{, s}^e^e^C^R^S^R^e^por^{t R}^L³¹³⁶⁵^,^U^naut^hor^iz^e^d^Alieⁿ^St^ude^nts^:^Le^gⁱ^s^l^atio^{n i}ⁿ^t^h^e
¹⁰⁷^th^an^{d 10}⁸^th^C^o^ng^resses^{, by}^A^ndo^r^r^a^B^r^un^{o a}ⁿ^{d J}^e^f^f^r^ey^J^.^K^u^eⁿ^zⁱ^.
²⁰^A^c^{t of}^J^une^27,¹⁹^52,^c^h^.⁴⁷^7;⁸^U^.^S.C^.^§1¹⁰¹^et^seq^.
²¹^Rule^{s g}^o^v^e^rning^c^aⁿ^c^e^lla^tion^of^re^m^o^v^a^l/a^djustm^eⁿ^{t of}^sta^t^{us a}^r^e^s^e^{t f}^o^{rth in INA}^§2^40A^.
²²^T^h^e^IN^A^g^r^ounds^of^ina^d^mⁱ^s^sⁱ^bility^a^r^e^{in IN}^A^§21^2(a⁾^.
²³^T^h^e^IN^A^g^r^ounds^of^de^por^ta^bilit^y^a^r^e^{in IN}^A^§237(a⁾^.

An alien granted cancellation of removal under S. 2075 and H.R. 5131 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 a full-fledged LPR, the alien would have had to submit an application during a specified
period and meet additional requirements. These requirements would have included that the alien
had demonstrated good moral character during the period of conditional permanent residence; had
not abandoned his or her U.S. residence; and had either acquired a college degree (or completed
at least two years in a bachelor’s or higher degree program) in the United States, or had served in
the uniformed services for at least two years.
Both S. 2075 and H.R. 5131 would have placed restrictions on aliens who adjusted to LPR status
under their provisions, with respect to eligibility for federal student financial aid under Title IV of
the Higher Education Act of 1965, as amended. Under that act, LPRs and certain other eligible
noncitizens may receive federal financial aid. S. 2075 would have made aliens who adjusted 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, they would not have been eligible for federal Pell Grants or federal
supplemental educational opportunity grants. H.R. 5131 would have imposed similar restrictions
on eligibility for federal student financial aid, but they would have been temporary. This bill
would have made aliens adjusting status under its terms ineligible for federal Pell Grants and
federal supplemental educational opportunity grants, but these restrictions would have applied
only to aliens with conditional permanent resident status. Once the conditional basis of an alien’s
LPR status had been removed, these restrictions would no longer have applied.
The 109^th Congress took no action on S. 2075 or H.R. 5131. S. 2075, however, was incorporated
into the Comprehensive Immigration Reform Act of 2006 (S. 2611) as Title VI, Subtitle C. S.

2611 passed the Senate on May 25, 2006, but saw no further action. The major immigration bill ^th

passed by the House in the 109 Congress, the Border Protection, Antiterrorism, and Illegal
Immigration Control Act (H.R. 4437), did not contain any provisions on unauthorized alien
students.
^An^{dorra Bru}ⁿ^o
^Sp^{ecialist i}ⁿ^I^m^mⁱ^g^r^atioⁿ^P^o^lic^y
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