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Looking Forward: DACA Legislation Heading Into 2018. What is now pending and possible DACA solutions...


By Maria L. Santos - Posted on 23 January 2018

AILA Doc. No. 18012331 | Dated November 29, 2017

On September 5, 2017, the Trump administration announced that it was ending the Deferred Action for Child Arrivals ("DACA") program. Immigration attorneys around the country immediately sprang into action, renewing DACA for those who were eligible, screening for other forms of relief, and working with members of Congress to create a legislative solution for DACA recipients. In terms of the latter, advocates have consistently pushed for a "clean" Dream Act, a bill that would provide lawful status for DACA recipients with no strings attached.

But just how likely is a clean Dream Act? What other options are on the table? DACA recipients, immigration attorneys, and community supporters alike find themselves asking the same questions. Here are some possible answers:

2017 Dream Act (S. 1615 and H.R. 3440):
The 2017 Dream Act has bipartisan support and provides a pathway to citizenship. It would allow immigrants who entered the country before the age of eighteen to apply for Conditional Permanent Resident ("CPR") status, provided they show four years of physical presence, meet an education requirement, have not been convicted of certain crimes, and are not subject to certain inadmissibility grounds. After meeting certain prescribed conditions, immigrants in CPR status would be eligible to apply for Lawful Permanent Resident ("LPR") status. To qualify for LPR status, applicants would need to meet a developmental milestone such as earning a degree, serving in the military for two years, or showing employment for at least three years. After five years in LPR status, immigrants would be eligible to apply for naturalization.
Pros: Bipartisan support, pathway to citizenship, available to recipients of DACA and TPS, available to those with final orders of removal

Cons: Some developmental milestones could be difficult to achieve for low-income immigrants

BRIDGE Act (H.R. 496):
The Bar Removal of Individuals who Dream and Grow our Economy ("BRIDGE") Act, like the Dream Act, has received bipartisan support. Unlike the Dream Act, it would not provide a pathway to citizenship for DACA recipients. The BRIDGE Act would allow immigrants who entered the country before the age of sixteen and who were born on or after June 15, 1981, to apply provisional protected presence ("PPP"), which would be valid until three years after the date of the BRIDGE Act's enactment. The BRIDGE Act contains essentially the same education, physical presence, and security requirements as DACA.
Pros: Bipartisan support, available to those with final orders of removal

Cons: No pathway to citizenship, age restriction

American Hope Act of 2017 (H.R. 3591):
The American Hope Act of 2017 ("Hope Act") is the legislative option that would provide relief to the greatest number of people. It would allow those who entered the country before the age of eighteen to apply for CPR status as long as they could demonstrate continuous physical presence since December 31, 2016, and show that they had not been convicted of a crime that would make them inadmissible. The Hope Act has no education or employment requirement, and its proposed pathway to citizenship could be as little as five years. After three years in CPR status, a recipient could apply for LPR status. With five total years in status (CPR or LPR), a recipient could apply for naturalization.
Pros: Provides opportunities to the greatest number of immigrants, short pathway to citizenship, no education/employment requirement

Cons: Not bipartisan

Recognizing America's Children Act (H.R. 1468):
The Recognizing America's Children ("RAC") Act is another option for a pathway to citizenship for immigrants who entered before the age of sixteen; who have received a diploma, gone to college, or obtained employment authorization; and who have not been convicted of certain crimes. After a five year period in CPR status, immigrants could then apply to extend their CPR status, as long as they meet one of the following requirements: 1) graduated from an institution of higher education, 2) worked for 48 months, or 3) if an enlistee, been in active duty status for at least 3 years. After renewing their CPR status, applicants could then apply for LPR status, if they meet certain eligibility requirements. After five years in LPR status, immigrants would be able to apply for naturalization.
Pros: No age limit, available to those with removal orders (with certain exceptions), medium-length pathway to citizenship

Cons: Conditions for LPR status are more stringent, applicants must have satisfied all tax liability before applying

SUCCEED Act (S. 1852):
The Solution for Undocumented Children through Careers, Employment, Education, and Defending our Nation ("SUCCEED") Act is the final option currently pending in Congress. Immigrants who entered the country before the age of sixteen, who were born after June 15, 1981, and who could demonstrate physical presence since 2012 would be eligible for CPR status for an initial five-year period. In accepting CPR status, recipients would have to agree to waive almost all other forms of relief from removal if they violate any term of that status. After ten years in CPR status and five more in LPR status (during which time they would not be permitted to petition for family members), immigrants would be eligible to naturalize.
Pros: Conservative support, pathway to citizenship

Cons: Age limit, waiver of due process rights in removal (including accepting expedited removal for certain convictions), barred from petitioning for family

So is a clean Dream Act a possibility? Yes. In fact, the Dream Act has the most bipartisan support of any pathway to citizenship currently pending in Congress. However, the White House and Congress must resist the impulse to use Dreamers as a bargaining chip for more border security or restrictions on legal immigration. Playing politics with Dreamers lives puts them at risk, and harms both our economy and our communities. That's why we should urge our Senators and Representatives to work together to protect Dreamers now.

Sarah B. Pitney, Esq., is an associate attorney at Benach Collopy LLP in Washington, D.C. She graduated from Florida International University College of Law in 2015. She is admitted to practice in Washington, DC and Florida and focuses on family-based, deportation defense, asylum, and naturalization cases.
Take a look at AILA's Policy Brief: How Dreamer Protection Bills Measure Up.
Cite as AILA Doc. No. 18012331.