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Federal and state laws expand opportunities for Dreamers

A catalog of proposed and enacted measures that address access, citizenship

FEDERAL

2001 to Present -- Proposed Dream Act ("Development, Relief, and Education for Alien Minors Act"): Multiple versions introduced into Congress but never enacted

Various proposed versions of the Dream Act have been aimed at providing conditional legal status with a path to permanent legal residency (and ultimately citizenship) for designated categories of undocumented youth brought to this country as children. The act was first introduced in the Senate in 2001 and has since been reintroduced several times but never enacted into law. The proposed law's requirements for achieving permanent legal residency (and later citizenship) include going to college and/or serving in the military.

President Barack Obama's 2012 executive action program, known as "DACA" (see section on DACA below), was patterned after the Dream Act in terms of its eligibility requirements; however, DACA does not grant a path to any type of permanent legal status or citizenship. Instead, it focuses on more limited benefits such as relief from deportation and work authorization.

Under current law, undocumented youth generally derive their immigration status solely from their parents, and if their parents are undocumented (or in immigration limbo sorting out documentation), most have no mechanism to obtain legal residency, even if they have lived most of their lives in the U.S. The Dream Act would provide such a mechanism for those who are able to meet the act's conditions.

Sources:

• The White House: http://www.whitehouse.gov

• National Immigration Law Center: https://nilc.org/dreamsummary.html

• Immigration Policy Center: http://www.immigrationpolicy.org/just-facts/dispelling-dream-act-myths

• Migration Policy Institute: http://www.migrationpolicy.org/news/new-mpi-estimates-many-21-million-young-people-could-be-eligible-dream-act-though-far-fewer

2012 -- DACA ("Deferred Action for Childhood Arrivals")

On June 15, 2012, Obama announced an executive order creating the DACA program, administered by the Secretary of Homeland Security, allowing for certain categories of undocumented young people to request consideration of "deferred action" for a period of two years, subject to renewal.

"Deferred action" refers to the executive's discretion to refrain from deporting an individual for a certain period of time.

Once approved for DACA, undocumented young people are protected from deportation for two years and also eligible for work authorization, including receipt of a provisional Social Security number.

DACA benefits do not include a green card or path to citizenship. DACA status instead is temporary, expiring after two years unless renewed; also, it could be changed or terminated at any time by executive order, Act of Congress or possibly a court order.

As of March 2015, approximately 750,000 young people had applied for DACA -- almost half of the nearly 1.6 million unauthorized immigrants ages 15 or older potentially eligible to apply, according to the Migration Policy Institute. The group estimates another 423,000 under age 15 will be eligible to apply once they age in. Of these DACA applications, about 88 percent of those reviewed had been approved.

In his remarks introducing DACA, Obama said:

"(Today we announce) new actions ... to mend our nation's immigration policy, to make it more fair, more efficient, and more just -- specifically for certain young people sometimes called 'Dreamers.'

"These are young people who study in our schools, they play in our neighborhoods, they're friends with our kids, they pledge allegiance to our flag. They are Americans in their heart, in their minds, in every single way but one: on paper. They were brought to this country by their parents -- sometimes even as infants -- and often have no idea that they're undocumented until they apply for a job or a driver's license or a college scholarship.

"Put yourself in their shoes. Imagine you've done everything right your entire life -- studied hard, worked hard, maybe even graduated at the top of your class -- only to suddenly face the threat of deportation to a country that you know nothing about, with a language that you may not even speak."

A young person applying for DACA must demonstrate that he or she:

1. was under the age of 31 as of June 15, 2012;

2. came to the United States before turning 16;

3. has continuously resided in the United States since June 15, 2007, up to the present time;

4. was physically present in the United States on June 15, 2012, and at the time of making the application for deferred action;

5. had no lawful status on June 15, 2012;

6. is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran; and

7. has not been convicted of a felony, significant misdemeanor or three or more other misdemeanors and does not otherwise pose a threat to national security or public safety.

A felony is defined as a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. Significant misdemeanors under DACA include driving under the influence; domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; or drug distribution or trafficking -- but do not include minor traffic violations.

The DACA application fee is $465.

Recent Migration Policy Institute reports show that DACA beneficiaries are applying to renew their benefits as their initial grant nears its end date but that the process has been hampered by processing delays, confusion over the renewals process, lack of outreach and information, and difficulties for some in affording the application fee. Overall, about 83 percent, or 355,805, of the 430,396 beneficiaries eligible to renew their grants had done so as of March 31, 2015.

Though authorized to work, those with DACA are ineligible for many federal jobs (which may require U.S. citizenship or permanent legal residence). They also are not able to apply for federal grants, college aid or scholarships, or obtain most other government benefits -- although in California DACA recipients are eligible to apply for Medi-Cal health benefits.

DACA's constraints also make travel abroad too burdensome and risky for most DACA recipients. While such travel is not banned, to be able to re-enter the country, a DACA recipient must first apply for and receive "advance parole," a form of permission slip from the Department of Homeland Security (DHS) to "appear at a port-of-entry to seek parole into the United States." To be eligible for advance parole, the applicant must pay a $360 fee and provide documentation showing that the proposed travel is for humanitarian, employment or educational purposes. The humanitarian category includes obtaining medical assistance, attending a funeral for a family member, visiting a sick relative, or other urgent family-related purposes, according to the American Immigration Council.

However, as Department of Homeland Security instructions make clear, advance parole does not guarantee re-admission into the country. Instructions state: "WARNING: The document does not entitle you to be paroled into the United States; a separate discretionary decision on a request for parole will be made when you arrive at a port-of-entry upon your return."

Another section carries this added warning: "DHS may revoke or terminate your Advance Parole Document at any time, including while you are outside the United States, in which event you may be unable to return to the United States unless you have a valid visa or other document that permits you to travel to the United States and seek admission."

The uncertainty around the ability to return makes many DACA recipients reluctant to risk leaving the country.

Sources:

• U.S. Department of Homeland Security:

http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

https://www.uscis.gov/sites/default/files/files/form/i-131instr.pdf

• U.S. Department of Education: http://www2.ed.gov/about/overview/focus/supporting-undocumented-youth.pdf

• Migration Policy Institute: http://www.migrationpolicy.org/research/daca-three-year-mark-high-pace-renewals-processing-difficulties-evident

• Educators for Fair Consideration: http://www.e4fc.org/dacaguide.html

• American Immigration Council: http://www.legalactioncenter.org/sites/default/files/advance_parole_for_daca_recipients.pdf

2014 -- Obama's DACA Expansion and Creation of "DAPA" (Deferred Action for Parents of Americans and Lawful Permanent Residents"): Executive Order on hold pending court challenge

On Nov. 20, 2014, Obama announced additional executive actions regarding Dreamers and other undocumented immigrants, which included

• Expanding the age limits of those eligible for the DACA program, and extending the period of DACA and work authorization from two years to three years; and

• Allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years as part of a newly created program called DAPA -- provided parents have lived in the United States continuously since January 1, 2010, and meet other eligibility requirements.

This DACA expansion and new DAPA program -- potentially affecting the lives of more than five million undocumented immigrants -- was immediately placed on hold by an injunction in a federal lawsuit brought by 26 states, led by Texas. The lawsuit challenged Obama's executive authority in taking these actions on statutory and constitutional grounds. An appellate court upheld the district court's injunction and last month the Supreme Court agreed to hear the case in response to a petition brought by Obama's Justice Department. The justices are expected to hear arguments on the issue in April and to make a ruling by the end of June.

A lot could be riding on this Supreme Court decision. According to Politico.com: "If the court rules in Obama's favor, his administration will have a relatively short, seven-month window to try to roll out the expanded Deferred Action for Childhood Arrivals program and the new initiative called Deferred Action for Parents of Americans. While advocacy groups are eager to have illegal immigrants apply for the programs, there are questions about how many will do so if they're debuted or expanded so close to the end of Obama's presidency.

"The calculation of whether to apply may depend, in part, on the state of the presidential race and whether whoever is atop the field seems likely to continue Obama's policies. Since the moves are executive actions, they could be quickly rescinded, and most of the major Republican candidates have pledged to do just that."

On the other hand, the Supreme Court may strike down Obama's executive actions as outside his statutory or constitutional authority, ending DAPA and the expansion of DACA, and also potentially threatening the validity of the original DACA, which is not directly challenged in this lawsuit but could be affected adversely if the decision goes against the Justice Department.

According to estimates, there are 6.3 million children in the U.S. with DAPA-eligible parents (86 percent of these children are U.S. citizens; the rest legal permanent residents). In California, about 1.1 million parents would be DAPA-eligible; nearly 93 percent of their minor children -- an estimated 1.6 million -- are U.S. citizens.

In making this November 2014 announcement, Obama said:

"Our immigration system is broken -- and everybody knows it. ...

"(T)he fact is, millions of immigrants in every state, of every race and nationality still live here illegally. And let's be honest -- tracking down, rounding up, and deporting millions of people isn't realistic. Anyone who suggests otherwise isn't being straight with you. It's also not who we are as Americans. After all, most of these immigrants have been here a long time. They work hard, often in tough, low-paying jobs. They support their families. They worship at our churches. Many of their kids are American-born or spent most of their lives here, and their hopes, dreams, and patriotism are just like ours. ...

"Over the past few years, I have seen the determination of immigrant fathers who worked two or three jobs without taking a dime from the government, and at risk any moment of losing it all, just to build a better life for their kids. I've seen the heartbreak and anxiety of children whose mothers might be taken away from them just because they didn't have the right papers. I've seen the courage of students who, except for the circumstances of their birth, are as American as Malia or Sasha; students who bravely come out as undocumented in hopes they could make a difference in the country they love.

"These people -- our neighbors, our classmates, our friends -- they did not come here in search of a free ride or an easy life. They came to work, and study, and serve in our military, and above all, contribute to America's success."

Sources:

• The White House: https://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action

• Department of Homeland Security: http://www.uscis.gov/immigrationaction

• Center for the Study of Immigrant Integration (CSII), University of Southern California: http://dornsife.usc.edu/csii/dapa-impacts-children

• Washington Post: http://www.washingtonpost.com/news/wonkblog/wp/2014/11/19/your-complete-guide-to-obamas-immigration-order/#order

• Center for Latin American Studies at American University: http://aulablog.net/2015/06/08/u-s-immigration-reform-stuck-again/

• Politico: http://www.politico.com/story/2016/01/supreme-court-to-rule-on-obama-immigration-orders-217860#ixzz3ylhjgnxK

CALIFORNIA

2001 -- AB 540: Allowing undocumented students to pay in-state tuition

California was one of the first two states (Texas was the other) to pass legislation allowing undocumented students who meet certain requirements to pay in-state tuition instead of out-of-state tuition in attending state colleges and universities. Only 11 other states have followed this lead to allow in-state tuition for undocumented students at their resident state schools.

Arizona, Colorado, Georgia and Indiana have gone in the opposite direction, banning undocumented students from receiving in-state tuition; and South Carolina was the first state to ban undocumented students outright from attending public colleges and universities, followed by Alabama and Georgia, according to Educators for Fair Consideration.

More than 40,000 students in California qualified for AB 540 in 2009-10, according to the group.

2011 -- California Dream ("Development, Relief, and Education for Alien Minors") Act

The California Dream Act is a package of state laws that allows undocumented students who qualify under AB 540 for in-state tuition ("AB 540 students") and who meet various other requirements to apply for non-federal student financial aid benefits.

Many immigrant advocates see the expanded access to college aid as an important further investment in the continuing education of a large youth population with potential to become contributors and future leaders in the state's economy and society.

The Dream Act package was divided into two parts: the first passed in July 2011 (called AB 130) and the second passed in October 2011 (called AB 131) -- taking effect on Jan. 1, 2012, and Jan. 2, 2013, respectively.

The earlier bill, AB 130, allows AB 540 students to apply for what are known as "institutional" scholarships administered by the school (University of California Grants, State University Grants, Community College Board of Governors fee waivers, and private scholarships). This includes scholarships funded through private donors, alumni contributions and individual departmental efforts. Students must apply and compete for available awards as determined by their respective college or university.

An example of an institutional scholarship is one offered by University of California, Berkeley, called the Achievement Award Program, reserved for low-income incoming freshmen or junior transfers; AB 540 students with family income under $86,000 may receive up to $6,000 in scholarship, plus a laptop, through this program.

The later bill, AB 131, allows AB 540 students to apply for state-based financial aid (including Cal Grants, Chafee Foster Youth Grants and Middle Class Scholarships).

An example of state-based financial aid is Cal Grants, a needs-based program with GPA requirements, renewable by a separate application each year. Cal Grants can be used at any University of California, California State University or California community college site, as well as qualifying independent and career colleges or technical schools in California. Cal Grants include tuition awards up to $12,240 at a University of California campus, up to $5,472 at a Cal State campus, and up to $9,084 at independent colleges. Cal Grants are not loans; they do not have to be paid back.

2013 -- AB 60: Drivers Licenses for Undocumented Immigrants

AB 60, passed in October 2013, allows undocumented immigrants to apply for driver licenses starting January 2015, without necessity of a Social Security number or other proof of authorized residency in the U.S.

Driver's license applicants under AB 60 must meet all other qualifications for license and must provide satisfactory proof of identity and California residency.

The passage of AB 60 ended an era -- spanning 22 years -- in which undocumented drivers were excluded from obtaining driver's licenses in California. The current prohibition began in 1993, when then-Governor Pete Wilson successfully pushed for passage of a law requiring, for the first time, evidence of citizenship or legal residency status in applying for a driver's license. Prior to this 1993 law, undocumented drivers were permitted to obtain licenses.

The 1993 ban on driver's licenses for undocumented immigrants led to significant hardships for the state's resident undocumented population, including mobility challenges and/or related legal risks (arrests, fines, car towing and impoundment, notice to immigration authorities, etc.) of driving without a license, according to immigrant advocates and AB 60 sponsors.

The new law also garnered support from law enforcement. According to the Los Angeles Times: "The new bill comes after some of California's top law enforcement officials, including Los Angeles Police Chief Charlie Beck and Los Angeles County Sheriff Lee Baca, expressed strong support for the idea. They argued that immigrants should not fear cooperating with police or feel harassed simply because of their immigration status."

In signing the bill, Gov. Jerry Brown said in a statement that it would "enable millions of people to get to work safely and legally."

According to a recent New York Times report, "(California) DMV officials predict that they will issue nearly 1.5 million licenses to undocumented immigrants within three years. Of the 883,000 total licenses issued from January to the end of July, 443,000 were granted to undocumented immigrants, the officials said."

Also starting Jan. 1, 2015, undocumented immigrants are eligible for the first time to buy insurance for their cars through California Low-Cost Auto Insurance program.

2013 -- Undocumented immigrants may become lawyers, admitted to the State Bar

AB 1024, passed in 2013, authorizes admission to the State Bar of an applicant who is not lawfully present in the United States, as long as the applicant has fulfilled requirements for admission. The bill went into effect Jan. 1, 2014.

2014 -- Professional licensing permitted for undocumented immigrants

SB 1159 requires all 40 licensing boards under the California Department of Consumer Affairs to consider applicants without regard to immigration status by Jan. 1, 2016. Under this new law, undocumented immigrants who fulfill professional requirements may apply to become licensed real estate agents, architects, certified public accountants, contractors, nurses, pharmacists, physicians, psychologists, security guards, etc.

Under this new law, undocumented immigrants (with or without DACA) who meet licensing requirements will now have the option to work as self-employed, licensed professionals in California,using their Individual Taxpayer Identification Number -- supplied by the IRS to undocumented immigrants paying taxes -- instead of a Social Security number, if no Social Security number is available.

2014 -- DACA beneficiaries eligible for Medi-Cal health benefits

Starting Jan. 1, 2014, DACA beneficiaries living in California are eligible for state-funded Medi-Cal insurance, which serves low-income individuals, families, seniors, persons with disabilities, children in foster care, and pregnant women.

2015 -- Health care for undocumented children

In October 2015, California enacted the "Health for All Kids Act," also known as SB 4, to provide state-funded health care coverage to the state's undocumented children. According to SB 4's sponsor, Senator Ricardo Lara, an estimated 170,000 undocumented kids will now be eligible for full Medi-Cal benefits beginning in May 2016. The annual cost is expected to be about $132 million for this program, according to the Los Angeles Times.

Sources:

• Educators for Fair Consideration:

http://www.e4fc.org

http://www.e4fc.org/images/Fact_Sheet.pdf

http://www.e4fc.org/images/2.24.DACA-Medi-Cal-FINAL.pdf

• California Student Aid Commission:

http://www.csac.ca.gov/doc.asp?id=905

http://www.csac.ca.gov/pubs/forms/grnt_frm/cal_grant_dream_act_faqs.pdf

• New York Times:

http://www.nytimes.com/2015/08/09/us/california-effort-to-issue-drivers-licenses-to-immigrants-receives-surge-of-applicants.html?_r=0

http://www.nytimes.com/2015/06/03/us/california-bill-would-extend-insurance-to-young-immigrants.html

• Los Angeles Times:

http://www.latimes.com/local/lanow/la-me-ln-drivers-license-for-undocumented-immigrants-stir-debate-20130913-story.html

http://www.latimes.com/local/political/la-me-pc-california-immigrant-healthcare-20151009-story.html

• Public Advocates, Inc:

http://www.publicadvocates.org/2013-09-17/driving-away-pete-wilson-s-ghost

• California Legislative Information:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1024

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB1159

• Orange County Register:

http://www.ocregister.com/articles/california-646538-state-immigrants.html

• State Senator Ricardo Lara:

http://sd33.senate.ca.gov/news/2015-10-09-governor-signs-lara%E2%80%99s-health-all-kids-act

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