E.g., 12/06/2019
E.g., 12/06/2019

More Than a DREAM (Act), Less Than a Promise

Justin Valas

The American Dream and Promise Act of 2019—the first bill introduced in the 116th Congress that would offer a path to legal status for DREAMers—is an expansive proposal, going beyond DREAM Act bills that have been pending in Congress in one form or another since 2001. While it has almost no chance of enactment, the legislation is intended to serve a pair of purposes: Set a Democratic marker for future immigration negotiations and represent a commitment that House Democrats will prioritize action on behalf of DREAMers and other unauthorized immigrants with longstanding U.S. ties.

Beyond DREAMers (the term used for unauthorized immigrants brought to the United States as children), the bill would offer legal status to two other groups: Noncitizens who have been eligible for Temporary Protected Status (TPS) because of difficult conditions in their countries and a smaller group of Liberians who have benefited from Deferred Enforced Departure (DED). Both TPS and DED offer protection from deportation and work authorization.

Drawing from an innovative Migration Policy Institute (MPI) methodology that assigns legal status in U.S. Census Bureau data, MPI estimates that 2.3 million DREAMers would be eligible for conditional legal status under the bill, and 429,000 TPS and DED holders could apply immediately for legal permanent residence (also known as getting a green card). All told, MPI estimates that HR 6 would put slightly less than 2.7 million of the nation’s estimated 11.3 million unauthorized immigrants on a path to a green card.

Figure 1. MPI Estimates of Number of Noncitizens Who Could Gain Legal Status under HR 6

Note: The overall total takes into account a small overlap between the DREAMer and TPS/DED populations.
Source: Migration Policy Institute (MPI) calculations using U.S. Census Bureau data from the 2016 American Community Survey (ACS) and the 2008 Survey of Income and Program Participation (SIPP) with legal-status assignments using a unique MPI methodology developed in consultation with demographers at Temple University and Pennsylvania State University. For more on the methodology, see Julia Gelatt and Jie Zong, Settling In: A Profile of the Unauthorized Immigrant Population in the United States (Washington, DC: MPI, 2018), www.migrationpolicy.org/research/profile-unauthorized-immigrant-population-united-states.

Expanding the Definition of DREAMers

Prior bills seeking to offer DREAMers legal status have generally focused on younger unauthorized immigrants who entered the country as children. That group was the focus of the Deferred Action for Childhood Arrivals (DACA) program launched by the Obama administration in 2012 to extend deportation relief and work authorization. While the Trump administration in 2017 indicated its intent to terminate the DACA program, court decisions have left it largely in place.

HR 6 would offer conditional legal status to a larger group: Unauthorized immigrants, regardless of age, who entered the United States before age 18 and at least four years before enactment of the legislation, and who have a high school diploma or GED, or are enrolled in a high school, GED program, or an apprenticeship program.

To transition from conditional status to a green card, recipients would need to earn a college degree, complete at least two years of postsecondary education, serve in the military for two years, or be employed for at least three years. Exceptions would be granted for those with disabilities, who serve as primary caretaker for a child, or whose removal would create hardship for a U.S.-citizen or legal permanent resident (LPR) parent, spouse, or child. Recipients would have ten years to meet these criteria. Unauthorized immigrants with a serious criminal record would be blocked from both conditional status and from obtaining a green card.

Table 1. Top Ten Countries of Origin of DREAMers Eligible for Conditional Status Under HR 6

Source: MPI calculations using U.S. Census Bureau data from the 2016 ACS and the 2008 SIPP with legal-status assignments using a unique MPI methodology developed in consultation with demographers at Temple University and Pennsylvania State University.

Temporary Protected Status

This bill combines the interests of DREAMers with those of noncitizens eligible for TPS, another group whose protections the Trump administration has moved to end. Since 1990, the United States has occasionally granted this form of humanitarian relief to nationals of countries designated by the U.S. government as unsafe for their return due to natural disasters, armed conflicts, or other extraordinary circumstances.

Some groups with TPS have been in the country for extensive periods of time—Salvadorans since 2001, following earthquakes there; Hondurans and Nicaraguans since 1999, following Hurricane Mitch; and Sudanese since 1997, following civil conflict. The Department of Homeland Security (DHS) in the last two years has moved to end TPS for six out of ten nationalities that currently are eligible—affecting 98 percent of those with TPS.

Table 2. TPS-Eligible Populations that Could Gain Legal Permanent Residence Under HR 6, by Country of Origin

Notes: Numbers rounded to the nearest 1,000. There were about 200 Somalis eligible for TPS in these data. Individuals who are inadmissible to the United States based on certain criminal or security grounds could not obtain legal permanent residence through HR 6. MPI is unable to model how many TPS-eligible people this might affect.
Source: MPI calculations using U.S. Census Bureau data from the 2016 ACS and the 2008 SIPP with legal-status assignments using a unique MPI methodology developed in consultation with demographers at Temple University and Pennsylvania State University.

The long duration of grants of protections meant to be temporary have stretched the intent of the program. But over long periods in the United States, TPS holders have become part of U.S. communities, having children, filling labor market needs or starting businesses of their own. As just one example of how embedded TPS holders—and DREAMers—have become in U.S. communities, MPI estimates that about 37,000 people eligible for a path to legal status under HR 6 are employed as teachers or teaching assistants, including 4,000 eligible through the bill’s TPS provisions.

The legislation would offer immediate access to legal permanent residence to those who were eligible for TPS in August 2016—not only those who were enrolled—and who had been in the country at least three years prior to the bill’s enactment, and are not inadmissible based on criminal or security grounds. MPI estimates this would create a path to green cards for 429,000 noncitizens. In comparison, around 325,000 people had active TPS protections as of January 2017.

Deferred Enforced Departure

Nationals from Liberia have benefited from protections in the United States since 1991. Following the end of the armed conflict, President George W. Bush ended the TPS designation for Liberians in 2007, offering those coming off TPS a deferral of their enforced departure, restricted to recipients who had been in the United States since 2002. Before him, President Clinton had extended DED to Liberians in 1999. President Obama extended DED for this group of Liberians several times.

In 2014, Liberians, along with nationals from Guinea and Sierra Leone present in the United States, were offered TPS following an outbreak of Ebola, but that grant expired in May 2017. Meanwhile, Obama issued a last extension of DED for Liberians in September 2016 to extend protections through March 2018. Trump in March 2018 announced that the DED designation would end on March 31 of this year. Without relief from Congress, affected Liberians will face the choice of returning to Liberia, where they have not lived in 17 years, or remaining in the United States as unauthorized immigrants. According to data compiled by U.S. Citizenship and Immigration Services (USCIS) and provided to MPI through a Freedom of Information Act request, about 1,400 Liberians had DED protections as of September 2016. 

Additional Measures in HR6

Beyond offering a path to legal status, the legislation has several other interesting provisions.

A surprising feature is that the bill would offer protections to DREAMers deported since Trump took office as well as TPS recipients deported since September 25, 2016, if the deportation was purely due to their unauthorized status. This would offer an unknown, but likely small, number of recent deportees a chance to return to the United States and gain legal status.

The legislation would also repeal a provision in a 1996 law that blocked states from extending in-state college tuition to unauthorized immigrants unless they also did so for U.S.-citizen students from any other state.

HR 6 would make an important change to the legislation governing the TPS program. It would clarify that people granted TPS are to be considered as having been inspected and admitted to the United States. This would open up greater possibilities for future TPS holders to pursue paths to legal status from within the United States than are currently available.

The measure would also block the deportation of anyone under age 18 who entered the country at least four years before the bill’s enactment, under the assumption that they would become eligible for conditional status as they further their education. In doing so, the measure would also offer work authorization to these unauthorized immigrant minors, as it would to anyone applying for legal status under HR 6, while the application is pending.

And, quite notably, the bill would make people ineligible for deportation if they could show that, at first glance, they were eligible for legal status under HR 6 or through other existing channels, such as asylum or cancellation of removal. (Cancellation of removal is available to unauthorized immigrants who have lived in the United States for at least 10 years; show good moral character; and who have a U.S.-citizen or lawful permanent resident parent, spouse, or child who would suffer extreme consequences if the applicant were removed.)

The Path Forward

While this bill is highly unlikely to be considered in the Republican-led Senate and even less likely to be signed into law, its debate and potential passage in the House could give lawmakers in both parties an opportunity to discuss what could represent the acceptable contours for a bipartisan compromise while the challenges to DACA and TPS termination wind their way through the courts, toward eventual Supreme Court consideration. Should the Supreme Court uphold the programs’ termination, ending protections for an estimated 1 million people, Congress will find itself under intense pressure to resolve the fates of these DACA and TPS recipients. This legislation represents an opening bid in what will surely be a long set of negotiations on these issues.

This commentary was updated on March 20, 2019 to add estimates of the number of teachers in the potential beneficiary population under HR 6.

The author is grateful to Jie Zong, who estimated the number of DREAMer beneficiaries in the bill, Ariel G. Ruiz Soto who estimated the number of TPS and DED beneficiaries, and Sarah Pierce, who provided detailed analysis of the legislative provisions.