Immigration Matters - 2019


Is the DREAM Act Back?

By Rishi P Oza

While much talk surrounding the topic of immigration has focused on President Trump's insistence on a border wall with Mexico, Democrats in the House of Representatives have revived a major piece of legislation – an immigrant overhaul that would permit approximately 2.5 million people to apply for lawful status in the United States and provide them with a pathway to US citizenship. HR 6, also called the Dream and Promise Act, combines many of the proposals from the DREAM Act that was proposed under President Obama, with additional protections for immigrants granted Temporary Protected Status (also known as “TPS") and other humanitarian-based programs.

If passed, which is hardly a given, the Dream and Promise Act would mark a major accomplishment for President Trump in address many of the existing problems currently facing millions of individuals.

Up until this point, millions of individuals in the United States have been caught in a legal limbo, crunched between some pre-Obama/Obama-era programs and Trump Administration initiatives to roll or extinguish these initiatives. Two primary categories have driven much of the conversation, DACA recipients and those that have qualified for TPS, both of which the Trump Administration has attempted to terminate. The Obama initiative known as DACA has helped to protect millions of individuals brought to the United States as youths, but served as a band-aid-style remedy, providing recipients with work authorization cards and therefore, access to Social Security cards and higher education opportunities; however, the core criticism of DACA has always been that it amounts to a massive executive-branch overreach, as the President cannot create laws, but can only execute those that have been passed by Congress.

A review of the Immigration and Nationality Act will provide not a single mention of “Deferred Action for Childhood Arrivals" and so states have argued (somewhat successfully) that DACA cannot stand as the President must enact laws created by Congress, but not create laws on his own. Similarly, TPS is granted to individuals from specified countries which the US government has determined are unsafe for return, due to war, natural disasters or other calamities. Currently, USCIS estimates that over 300,000 individuals from ten countries are legally in the United States through the TPS program, some of whom have had TPS for over 20 years.

The Dream and Promise Act would provide DACA and TPS recipients with statutory authority to remain in the United States as conditional permanent residents, as well as an eventual pathway to obtaining US citizenship. DACA recipients would qualify for conditional residency if they were to meet a series of requirements:

• Must be 17 or younger when they entered the United States;
• Was continuously present in the US for four years before the date the bill is enacted;
• Have not been convicted of a serious crime or terrorism-related offense;
• Have obtained or are obtaining a high school diploma, GED, or industry credential;
• Submit an application fee, pass security and law enforcement background checks, and register for selective service (if applicable).

Once approved for conditional permanent residency, individuals could apply for full residency status once they have:

• Obtained a degree from a higher education institute or completed at least two years in a bachelor's or post-secondary level program in the US;
• Completed two years of military service, with an honorable discharge (if applicable); or
• Worked for a total of at least three years, with employment authorization for at least 75 percent of that time

TPS recipients would be permitted to apply directly for lawful permanent residency if they

• Have lived in the United States for at least three years
• Were eligible for or had TPS status on September 25, 2016 and
• Have not been convicted of a serious crime or terrorism-related offense

The Dream and Promise Act would also provide the added benefit of cancelling any pending removal proceedings or outstanding orders of removal for any eligible applicant. Moreover, those removed from the Untied States by the Trump Administration before the bill's enactment would be eligible to return with a green card if they met the above-mentioned requirements.

While the policy seems to be relatively straightforward, the politics surrounding the legislation remains treacherous. Immigration has long-been a political minefield and has not seen landmark legislative reform since the mid-1990s. Successive administrations, both Republican and Democrat, have tried and failed at comprehensive reform, despite acknowledgement from all parties of the systemic dysfunction and needs for reform. As has been a repeating theme with all immigration-related topics, the inability for Congress to muster the collective will to pass reforms may stymie otherwise reasonable policy considerations. The beneficiaries of such legislation are millions of immigrants, many of whom only know the United States as home and therefore, finding a solution to this issue may help to define what kind of country America wants to be moving forward.

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Rishi P. Oza is the Partner at Robert Brown LLC, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com