Siskind Summary – HR 3304 – The House Dream Act of 2017

Posted on: September 27th, 2017
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Siskind Summary – HR 3304 – The House Dream Act of 2017

By Greg Siskind (gsiskind@visalaw.com)

This version of the Dream Act is co-sponsored by Representative Roybal-Allard (D-CA) and Ros-Lehtinen (R-FL) and has 200 co-sponsors.

Section 1. Short Title – The Dream Act of 2017

Section 2. Definitions

Select ones that are not obvious –

“Disability” – Refers to section 3(1) of the Americans with Disabilities Act of 1990

The term “disability” means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment .

“Early Childhood Education Program” – As defined in Section 103 of the Higher Education Act of 1965 – includes Head Start programs, state licensed child care programs or programs that serve children from birth through age six that addresses children’s cognitive, social, emotional and physical development and is a state pre-k or similar program.

“Institution of Higher Education” – as defined in section 102 of the Higher Education Act of 1965. This is a somewhat broader definition than used, for example, for H-1B visas and would include for-profit schools as well as programs offering lesser degrees than associates or bachelors degrees. Does NOT include foreign institutions.

“Permanent Resident Status on a Conditional Basis” means people who get conditional permanent residence (CPR) under this act.

“Poverty Line” – Uses Census definition rather than HHS guidelines which is the normal reference in immigration cases. Census number is a little higher.

“Uniformed Services” – defined in 10 USC 101(a) and means the armed forces, the commissioned corp of the National Oceanic and Atmospheric Administration and the commissioned corp of the Public Health Service.

Section 3. Permanent Resident Status on a Conditional Basis for Certain Long-Term Residents Who Entered the United States as Children.

Aliens getting permanent resident status under this act get it on a conditional basis.

DHS shall cancel the removal of and adjust to CPR status an alien who is inadmissible or deportable from the US or is in temporary protected status (TPS) if

  • The alien has been continuously physically present in the US since the date that is 4 years before the date of the enactment of the act.
  • The alien was younger than 18 when the alien initially entered the US.
  • The alien is not inadmissible for the following reasons outlined in INA 212(a)-
    • Criminal and related grounds – 212(a)(2)
    • Security and related grounds – 212(a)(3)
    • Alien smuggling – 212(a)(6)(E)
    • Student visa abusers – these are people who came on F-1s and violated status – 212(a)(6)(G)
    • People permanently ineligible for citizenship and draft evaders – 212(a)(8)
    • Polygamists – 212(a)(10)(A)
    • International Child Abductors – 212(a)(10)(C)
    • Unlawful Voters – 212(a)(10)(D)
  • The alien hasn’t been involved with persecuting people on account of race, religion, nationality, membership in a social group or political opinion
  • The alien hasn’t been convicted under federal or state law (other than immigration violations) that is punishable by a maximum term of more than 1 year or 3 or more offenses under federal or state law (other than immigration violations) and arising on different dates that led to imprisonment for an aggregate of 90 days or more;
  • The alien has been admitted to an institution of higher education, has earned a high school diploma or GED, or is enrolled in secondary school or a GED/high school diploma equivalent educational program.

Waiver – DHS may waive the grounds of inadmissibility based on 212(a)(2), (6)(E), (6)(G), or (10)(D).

Treatment of Expunged Convictions – DHS shall review expunged cases on a case by case basis and review circumstances to determine whether they should prevent someone from applying.

DACA recipients – DACA recipients will get CPR unless they engaged in conduct since receiving DACA status making them ineligible for DACA.

Application fee – DHS may charge a reasonable fee. Exemptions will be available for applicants 1) younger than 18 years of age or  2) receiving total income during the year preceding application date less than 150% of the poverty line AND the applicant is in foster care, younger than 18 and homeless or cannot care for himself or herself because of a disability and had income under 150% of the poverty line in the last year OR during the last year accumulated more than $10K in medical debt (includes immediate family) and has income below 150% of the poverty line.

Biometrics/Biographic data – Aliens must submit such data (exceptions for physically impaired) and DHS must complete a background check using the data.

Medical exams – Aliens must undergo an exam to get CPR status.

Military selective service – Aliens applying for CPR must register for the draft if required.

Determining physical presence – doesn’t terminate when the alien gets a notice to appear in a removal proceeding.

Treatment of Certain Breaks in Presence – With exceptions, aliens cannot maintain continuous residence if they have departed for more than 90 straight days or 180 days in the aggregate. DHS may extend for extenuating circumstances beyond the alien’s control, including the serious illness of the alien, or death or serious illness of a parent, sibling, grandparent or child of the alien. Doesn’t include periods of travel authorized by DHS.

Limitation on Removal of Certain Aliens – DHS/DOJ may not remove aliens who appear prima facie eligible for relief under this section. Such individuals must be given a reasonable opportunity to apply if the alien is in removal proceedings, is the subject of a final removal order or is the subject of a voluntary departure order. DHS will also stay the removal proceedings of and not commence new proceedings for any alien who meets the act’s requirements except education/service requirements who is at least 5 years of age and enrolled in elementary or secondary school or an early childhood education program. [Note – those younger wouldn’t meet the requirement to be here for at least four years]. Employment Authorization Documents are to be granted to people covered under this section.

CPR grants will not affect numerical limits on green cards.

Section 4. Terms of Permanent Resident Status on a Conditional Basis.

Granted for a period of 8 years unless DHS extends.

May be terminated if DHS

  • Determines the alien now fails one of the inadmissibility eligibility grounds (such as the criminal ones)
  • DHS must give notice and an opportunity to contest

The alien will be returned to the status held before CPR except that if DHS determines that the reason for terminating renders the alien ineligible for TPS, the alien will not be returned to that status.

Section 5. Removal of Conditional Basis of Permanent Resident Status.

The conditional basis of the alien’s permanent resident status shall be removed if the alien has not abandoned residence in the US and 1) has acquired a degree from an institution of higher education or has completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the US, 2) has served in the Uniformed Services for at least 2 years and, if discharged, received an honorable discharge, or 3) has been employed for at least 3 years and 75% of that time has held a valid employment authorization, except that any period the person is not employed while having employment authorization and is enrolled in school shall not count toward the time requirements under this clause.

Hardship exception – DHS may remove the conditions and grant unconditional permanent residency if the alien demonstrates compelling circumstances for the inability to satisfy the requirements and demonstrates the alien has a disability, is a full-time caregiver of a minor child or the removal of the alien would result in an extreme hardship to the alien or the alien’s parent, spouse, or child who is a US national or lawful permanent resident.

Citizenship requirement – Alien must show the ability to pass citizenship English exam (there’s a disability exception).

Application fee – DHS may charge a reasonable fee to process this application. Same fee exemptions as noted above are available.

Biometrics/Biographic data – same requirements as for initial CPR application.

Treatment for Purposes of Naturalization – For purposes of naturalizing, an alien granted CPR shall be considered to have been admitted to the US and be present in the US as an alien lawfully admitted for permanent residence. Aliens must be converted to unconditional permanent residence before a naturalization application may be submitted.

Section 6. Documentation Requirements.

Documents Establishing Identity –

  • Passport or national ID document from the alien’s country that includes alien’s name and a photo or fingerprint
  • Alien’s birth certificate and an ID card that includes name and photo
  • A school ID card including name and photo and school records showing name and that the alien was enrolled
  • A Uniformed Services ID card issued by the Department of Defense
  • Any immigration or other document issued by the US government
  • A state-issued ID card bearing alien’s name and photo

Documents Establishing Continuous Physical Presence in the US –

 employment records

– school records

– Uniformed Services records

– Religious institution records showing alien’s participation in a religious ceremony

– passport entries

 a birth certificate for a child born in the US

 automobile license receipts or registration

 real estate/lease documents

– tax receipts

 insurance policies

 remittance records

 rent receipts or utility bills

 money orders for money sent in or out of US

 dated bank transactions

 two or more sworn affidavits from people not related to the alien with direct knowledge

Documents Establishing Initial Entry Into the US – To show the alien was under 18 on the date of entry, the following may be submitted:

 admission stamp on the passport

 school records

 DOJ/DHS documents stating date of entry into the US

 health records

 rent receipts or utility bills

 employment records

 religious records

 birth certificate for child born in the US

 automobile license receipts or registration

 real estate/lease documents

 tax records

– travel records

 money orders for money sent in or out of US

 dated bank transactions

 remittance records

– insurance policies

Documents Establishing Admission to an Institution of Higher Education – to show admission to an institution of higher education, the alien shall submit a document from the institution certifying that the alien has been admitted or is currently enrolled as a student.

Documents Establishing Receipt of a Degree From an Institution of Higher Education – A diploma or other document from the school stating receipt of the degree will suffice.

Documents Establishing Receipt of High School Diploma, General Education Development Certificate, or a Recognized Equivalent – The alien shall submit to DHS a high school diploma or certificate of completion, equivalency diploma or certificate recognized by the state or evidence of passing the GED.

Documents Establishing Enrollment in an Educational Program – for other schools discussed in the act, school records showing the name of the school, alien’s name, periods of attendance and the current grade or educational level.

Documents Establishing Exemption from Application Fees –

  • To show age, show ID documents noted above showing age is younger than 18
  • To show income, employment records from the SSA or IRS or other government agency or bank records, or two sworn affidavits from non-relatives with direct knowledge

Documents to Establish Foster Care, Lack of Familial Support, Homelessness, or Serious Chronic Disability – Two sworn affidavits from non-relatives with direct knowledge

Documents to Establish Unpaid Medical Expense – The alien shall provide receipts or other documentation from a medical provider documenting that the alien has accumulated more than $10K in debt in the past year as a result of unreimbursed medical expenses.

Documents Establishing Qualification for Hardship Exemption – two sworn affidavits from non-relatives with direct knowledge.

Documents Establishing Service in the Uniformed Services –

 DOD form DD-214

 National Guard Report of Separation and Record of Service form 22

 Personnel records for such service from the appropriate Uniformed Service or

 health records from the appropriate Uniformed Service

Documents Establishing Employment –

  • SSA or IRS or other government records
  • At least two of the following:
    • Bank records
    • Business records
    • Employer records
    • Union, day labor center or worker assistance organization records
    • Sworn affidavits from non-related individuals with direct knowledge
    • Remittance records

DHS may prohibit or restrict the use of a document or class of documents if they go through a comment period and can show it is not reliable or is being used fraudulently to an unacceptable degree.

Section 7. Rulemaking.

Within 90 days of enactment, DHS shall publish implementing regulations which will allow for immediate application for relief. The regulations shall be effective on an interim basis and may be changed after notice and comment. Final regulations are due within 180 days of enactment. Paperwork Reduction Act is waived (presumably to speed up the process).

Section 8. Confidentiality of Information.

DHS may not disclose Dream or DACA application information. DHS may not refer individuals granted permanent resident status on a conditional basis or was granted DACA to ICE or CBP except to assist in law enforcement or to investigate criminal and security backgrounds of the applicant as part of application process. $10K penalty for violators.

Section 9. Restoration of State Option to Determine Residency for Purposes of Higher Education Benefits.

Section 505 of the 1996 Act which bars states from offering in-state tuition based on residency to illegally present immigrants is repealed. The repeal is retroactive to 1996.