United States: Analysis: "Dreamer" Bills Under Congressional Consideration

The Department of Homeland Security's announcement on September 5, 2017, officially ending the Deferred Action for Childhood Arrivals (DACA) program, has created new momentum in Congress for legislation that would protect young undocumented immigrants, or "Dreamers." While Congress has made many failed attempts to pass such legislation since the DREAM Act was introduced in 2001, many hope that the sense of urgency imparted by DACA's termination will spur congressional action. After all, now that the "wind down" of the DACA program has begun, Congress must pass Dreamer legislation in the next five months or accept that hundreds of thousands of young people who have lived most of their lives in the United States will be subject to deportation.  (For our prior blog post regarding the end of DACA, click here). 

Several bills have been introduced in Congress, but the bills that have garnered the most support so far are the DREAM Act and the SUCCEED Act. While both bills would provide a pathway to citizenship for many young immigrants, the SUCCEED Act includes draconian provisions that would restrict the rights of its beneficiaries, as well as the rights of foreign national nonimmigrant visa holders, in unprecedented ways. As the debate over Dreamer legislation heats up over the next few months, it will be important to keep in mind the differences between these bills.  

The DREAM Act intends to create a three-step path to citizenship for approximately 1.5 million undocumented immigrants currently living in the United States. First, foreign nationals who entered the U.S. before the age of 18, have been continually present in the U.S. for the past four years, and have either been accepted to an institution of higher education or have earned a high school diploma in the U.S., would be eligible to apply for conditional lawful permanent resident status. Beneficiaries could then obtain unconditional permanent resident status by either completing two years of higher education, serving in the armed forces for at least two years, or maintaining employment for three years. Beneficiaries would then be eligible to apply for citizenship through the naturalization process after five years.

While the SUCCEED Act is structurally similar to the DREAM Act, it includes many stringent restrictions that limit the immigration benefits. First, eligibility is restricted to immigrants who meet the eligibility requirements for the DREAM Act, and who were also under 31 years old and without lawful status on June 15, 2015.  Like DREAM Act beneficiaries, SUCCEED Act beneficiaries would be eligible to apply for conditional permanent resident status. However, under the SUCCEED Act, beneficiaries must then maintain conditional resident status for ten years before applying for an unconditional permanent resident status.  Unconditional resident status must then be maintained for an additional fifteen years before a beneficiary is eligible to apply for naturalization, making the overall path to citizenship at least 25 years long (as opposed to 3 or 5 years under the current system).  Beneficiaries would further be unable to petition for their family members until they became citizens. 

Furthermore, the SUCCEED Act creates further restrictions to maintaining eligibility, as well as creating the automatic waiver of certain rights.  Any beneficiary convicted of certain criminal offenses, including some misdemeanor charges as minor as traffic violations, would not only lose their status, but would also be subject to expedited removal, without the opportunity to argue their case before a judge. Beneficiaries of the SUCCEED Act would also waive their right to apply for almost all other forms of immigration relief, as well as waive other rights otherwise protected under the 4th Amendment.  Finally, the SUCCEED Act would also make broad changes to parts of the immigration system unrelated to Dreamers, including the implementation of expedited removal for visa overstays, and other automatic waivers of rights traditionally protected by the 4th Amendment for nearly all nonimmigrant visa holders.

To further complicate the ongoing debates in Congress, the Trump administration has also just released a list of hardline demands which the president wants included as part of any new immigration legislation.  These demands include the funding of the border wall, withholding federal grants to "sanctuary cities," increased deportation of Central American minors and their families fleeing rampant and extreme gang and other violence in El Salvador, Guatemala, and Honduras, as well as cuts to legal immigration. In addition, a White House aide this last weekend indicated that the president is no longer "interested in granting a path to citizenship" for dreamers.  This new list of presidential demands pulls off track any proposed legislation, as many on both sides of Congress oppose such measures.  Trump's demands also run counter to previous statements issued from the White House regarding immigration reform legislation.

At this time, how immigration reform legislation will move forward is uncertain.  Green and Spiegel will continue to carefully monitor legislative progress.  If interested, you can sign up for updates here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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