Immigration New York
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December 30th, 2010 by jdefelice

The legislation known as the DREAM ACT was first introduced in Congress in 2001 and more recently introduced in March, 2009U. Under the 2009 version of the Act the beneficiaries were required to have proof that he or she had arrived in the United States before the age of 16; proof of residence in the United States for at least 5 consecutive years since their date of arrival, compliance with Selective Service laws; be between the ages of 12 and 30 at the time the bill is enacted; have graduated from an American high school , obtained a GED or have been admitted to an institution of higher education and be of good moral character. The 111th Congress continued to consider the DREAM ACT which had numerous changes which were included to address concerns about the Act. These changes were as follows:

  1. Does not repeal the ban on in-state tuition for illegal immigrants. The DREAM Act does not force states to charge in-state tuition rates for illegal immigrants. The DREAM Act does not allow illegal immigrants to gain access to Federal Pell Grants and other financial aid.
  1. Lowers the age cap for eligibility for the DREAM Act to 29 on the date of enactment. Additionally, in order to be eligible, individuals still must have come to the U.S. as a child (15 or under), graduated from a U.S. High School (or received a GED from a U.S. institution) and be a long-term resident (at least 5 years). An earlier version of the DREAM Act (S. 1545 in the 108th Congress), authored by Republican Senator Orrin Hatch and cosponsored by Senator John McCain, did not include any age cap. This bill was approved by the Republican-controlled Senate Judiciary Committee on a 16-3 vote.
  2. Does not grant legal immigrant status to anyone for at least 2 years. Previous versions of the DREAM Act would have immediately granted legal immigrant status to individuals who met the bill’s requirements. Under S. 3992, an individual could obtain “conditional non-immigrant” status if he proves that he meets the age (currently 29 or under and arrived in the U.S. at 15 or under) and residency requirements (5 years or more) and:
    1. Has graduated from an American high school or obtained a GED;
    2. Has been a person of “good moral character,” as determined by the Department of Homeland Security, from the date the individual initially entered the U.S. (previous versions of the DREAM Act only required an individual to be a person of good moral character from the date of the bill’s enactment);
    3. Submits biometric information;
    4. Undergoes security and law-enforcement background checks;
    5. Undergoes a medical examination; and
    6. Registers for the Selective Service.
  3. Further limits eligibility for conditional nonimmigrant status by specifically excluding anyone who:
    1. Has committed one felony or three misdemeanors;
    2. Is likely to become a public charge;
    3. Has engaged in voter fraud or unlawful voting;
    4. Has committed marriage fraud;
    5. Has abused a student visa;
    6. Has engaged in persecution; or
    7. Poses a public health risk.
  4. Gives a conditional non-immigrant the chance to earn legal immigrant status only after 2 years and only if he meets the DREAM Act’s college or military service requirements, and other requirements, e.g., pays back taxes and demonstrates the ability to read, write, and speak English and demonstrates knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States.
  5. Further limits “chain migration.” DREAM Act individuals would have very limited ability to sponsor family members for U.S. citizenship. They could never sponsor extended family members and they could not begin sponsoring parents or siblings for at least 12 years. Parents and siblings who entered the U.S. illegally would have to leave the country for ten years before they could gain legal status and the visa backlog for siblings is decades long.
  6. Specifically excludes non-immigrants from the health insurance exchanges created by the Affordable Care Act. Conditional non-immigrants also would be ineligible for Medicaid, Food Stamps and other entitlement programs.
  7. Establishes a one-year application deadline. An individual would be required to apply for conditional non-immigrant status within one year of obtaining a high school degree or GED, being admitted to college, or the bill’s date of enactment.
  8. Requires anyone applying for the DREAM Act to show that he is likely to qualify in order to receive a stay of deportation while his application is pending. The DREAM Act is not a safe harbor from deportation.
  9. Requires the Department of Homeland Security to provide information from an individual’s DREAM Act application to any federal, state, tribal, or local law enforcement agency, or intelligence or national security agency in any criminal investigation or prosecution or for homeland security or national security purposes.
  10. Places the burden of proof on a DREAM Act applicant. An individual would be required to demonstrate eligibility for the DREAM Act by a preponderance of the evidence.

(Additionally, individuals would continue to be excluded if they have received a final order of deportation, have engaged in criminal activity (as defined by the Immigration and Nationality Act), or present a national security or terrorist threat.)

The bill was passed in the House of Representatives but failed in the Senate where the supporters were unable to obtain the necessary 60 votes to end a filibuster and advance the bill to a full vote. Five democrats voted against the bill and their votes were the difference as the vote to end the filibuster, which required 60 votes, was 55-41. The vote was mainly along party lines with most Democratic Senators supporting the legislation. With the advent of the new Congress where the Republicans now control the House of Representatives and are now a stronger minority in the Senate, it seems unlikely that the DREAM ACT will be approved in the next Congress.

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