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DACA & Undocumented Students

The sections below highlight current policies that impact higher education access, degree completion, and post-graduate career prospects for DACA and undocumented students.

Current Federal Policies

Deferred Action for Childhood Arrivals (DACA)

DACA is a deferred action policy implemented by the Obama administration in June 2012. DACA protects certain undocumented immigrants who came to the U.S. as children, providing two-year work permits and grants of protection from deportation. DACA is temporary. It can be revoked by the federal government and does not provide a roadmap to citizenship. 

Impact on Higher Education

More than 427,000 undocumented students are enrolled in postsecondary education, representing two percent of all postsecondary students in the U.S. Of these students, 181,000 are DACA-eligible (they either hold DACA or are eligible for DACA). Work permits are critical in helping students earn income to support their education, including paying for tuition, books, and other costs.

Latest Developments

On January 20, 2021, the Biden administration issued Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), a new memorandum that directs the DHS Secretary to “fortify and protect” DACA, signaling official rollbacks of the Trump administration’s efforts to end DACA. The Biden administration may issue memorandum, policy, or FAQ changes to expand eligibility.

Federal Prohibition on Postsecondary (Higher Education) Benefits

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 bars the provision of “state and local public benefits,” including “postsecondary benefits,” for “non-qualified aliens” unless the state passes an affirmative law making them explicitly eligible. Some courts view financial aid, in-state tuition, and even admission as public benefits.

Impact on Higher Education

In light of this restriction, states – through legislation, regulations, or education board policies – must affirmatively expand access to postsecondary benefits for most immigrant students. Before 1996, all immigrants were generally eligible for postsecondary benefits. However, since 1996, only states that have enacted affirmative policies on postsecondary benefits offer these benefits to immigrant students. 

Resources

Higher Ed Components of Key Immigration Legislation Impacting Undocumented Students (Presidents’ Alliance, 2021).

Federal Prohibition on Professional, Commercial, and Business Licenses

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, bars the provision of “state and local public benefits,” including “professional, commercial, and business licenses” (also known as “occupational licenses”) for “non-qualified aliens” unless the state passes an affirmative law making them explicitly eligible.

Impact on Higher Education

Over 1,100 different occupations require a license and approximately 25 percent of all workers nationwide are required to obtain a license in order to work in their occupations. Licensure is essential for many graduates from higher education to utilize their degree. Without access to licensure, individuals may not be able to fully leverage their education.

Prohibition on In-State Tuition Based on Residency

Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) bars states from providing “postsecondary education benefits” to those who are “not lawfully present” based on in-state residency, unless all citizens of the U.S. are eligible for those benefits regardless of state residency.

Impact on Higher Education

Approximately 21 states and D.C. offer in-state tuition on a variety of non-residency grounds (e.g. high school graduation in the state or similar), thereby overcoming the section 505 prohibition. Legal challenges to such programs still often cite section 505. The threat that courts will interpret section 505 in more restrictive ways remains in the coming years, potentially putting these in-state tuition laws at risk.

REAL ID

The REAL ID Act imposes standards on identification documents that the federal government will accept for purposes of identification, most notably boarding commercial aircraft.

Impact on Higher Education

These standards may interfere with immigrant and international students’ ability to enroll and/or participate in their education, particularly in terms of being able to travel to the location of their higher education. While 16 states and D.C. provide undocumented individuals with access to driver licenses, these licenses are usually not REAL ID-compliant.

The deadline for REAL ID enforcement has been extended to October 1, 2021, due to the COVID-19 pandemic.

Student Emergency Financial Aid Grants Under COVID-19 Legislation

The U.S. Department of Education announced on May 11, 2021 a new distribution of $36 billion in higher education emergency relief funds under the American Rescue Plan along with updated FAQs (see Q.8) that make clear that “all students who are or were enrolled in an institution of higher education during the COVID-19 national emergency are eligible for emergency financial grants from the HEERF” regardless of their immigration status, including DACA recipients, other undocumented students, and international students. The updated FAQs reflect the Department’s new final rule on student eligibility that reverses the previous policy.

In June of 2020, the Trump administration issued regulations preventing students who do not qualify for federal financial aid from receiving emergency grants under the CARES Act. This effectively excluded undocumented students, including DACA recipients, from accessing the emergency financial grants – particularly troubling as Congress included these students in determining the amount of financial aid to award. Emergency financial aid grants for students were also included in COVID-19 relief legislation passed in December 2020, but eligibility of undocumented students to the grants was not clear at the time. 

Impact on Higher Education

More than 427,000 undocumented students, two percent of all students enrolled in higher education in the U.S., are undocumented, including approximately 181,000 DACA-eligible individuals. The Trump administration blocked about 2% of all undergraduate and graduate students in the U.S. from accessing the Congressionally-approved aid that they needed during a global pandemic.

See Presidents’ Alliance directory of higher ed-related immigration recommendations and developments under the Biden Administration.

Resources

Emergency COVID Grants Are Now Available to Immigrant Students (National Immigration Law Center (NILC), 2021)

U.S. Department of Education Removes Restrictions on Emergency Relief Funds for Undocumented Students (Unidos Us, 2021)

Proposed Legislation

Dream Act of 2021

In February of 2021, Senators Dick Durbin (D-Illinois) and Lindsay Graham (R-South Carolina) introduced the Dream Act of 2021 (S. 264). Under the bill, an immigrant can obtain permanent relief if they:

  • Arrived before the age of 18;
  • Earned a high school diploma, GED, or high school equivalency diploma; and,
  • (i) Received a degree from an institution of higher education, (ii) completed at least two years or a program leading to a degree, or (iii) served in the U.S. military for at least two years; or (iv) has worked for at least three years.

Upwards of 1.7 million DACA recipients and other Dreamers would be eligible for lawful permanent resident (LPR) status. A total population of close to three million undocumented youth and young adults would be potential beneficiaries, including nearly one million who could become eligible if they enroll in school. See estimates from MPI here.

The bill would also repeal barriers for states seeking to offer in-state tuition for undocumented immigrants.

U.S. Citizenship Act

In February of 2021, Senator Bob Menendez (D-New Jersey)  and Representative Linda Sanchez (R-California) introduced the U.S. Citizenship Act (S. 348/H.R. 1177), legislation authored by the Biden administration, that would establish a roadmap to citizenship for the nation’s undocumented population, including an expedited path for Dreamers, TPS holders, and other populations. Under the bill’s Dream Act title, an immigrant can obtain permanent relief if they:

  • Arrived before the age of 18;
  • Earned a high school diploma, GED, or high school equivalency diploma; and,
  • (i) Received a degree from an institution of higher education, (ii) completed at least two years or a program leading to a degree, or (iii) served in the U.S. military for at least two years; or (iv) has worked for at least three years.

For more information, see the Presidents’ Alliance summary of this legislation, Overview of President Biden’s Immigration Reform Legislation in Regards to Higher Education and Student Immigrants

Additional Resources

America as a Welcoming Nation – The First 100 Days of the Biden Administration (American Immigration Lawyers Association (AILA), 2021).

Directory of Major Immigration Developments and Recommendations During First 100 Days of Biden Administration (Presidents’ Alliance, 2021).

Higher Ed Components of Key Immigration Legislation Impacting Undocumented Students (Presidents’ Alliance, 2021).

Legislative Recommendations Regarding Immigrant Students, Higher Education Access, Federal Financial Aid, and Professional and Occupational Licensure (Presidents’ Alliance, 2021).

Policy Brief: Budget Reconciliation as an Approach to Passing Immigration Reform (Presidents’ Alliance, 2021).

International Students & Scholars

The sections below highlight current policies that shape international students’ prospects for staying and working in the United States. 

Current Federal Policies

The U.S. does not currently have a national strategy to attract, welcome, and retain international students. As other countries are proactively implementing politics to attract and retrain the best and brightest from around the world, the White House should develop and implement a coordinated U.S. International Education strategy. This would not only serve as a cornerstone for rebuilding our relationships with other countries, but also proactively harness international education to build our economy back better and maintain our scientific and innovation edge.

Reopening the United States to International Students

The COVID-19 pandemic and the resulting United States policies related to travel and immigration restrictions continue to severely restrict the flow of international students to the U.S. While universities have rapidly adapted to ensure safe instruction for domestic students, many international students are unable to enter the country to begin or resume their studies. The consequences of these barriers – for both U.S. universities and the international students they serve – are significant and far-reaching. 

To see data on the impact of visa processing delays and travel restrictions on U.S.-bound international students, please click here

Resources

Executive and Administrative Immigration and Higher Education Actions.

Overview of Biden Executive Actions on Immigration Related to Higher Education and Students.

American Council on Education (ACE) Sign-on Letter to the Biden Administration on International Students. 

Dual Intent for International Students

Under current federal policies, international students enrolling at colleges and universities usually enter the U.S. on F-1 visas, which are “non-immigrant” visas. Universities and colleges have been working hard to stem the decline in international student enrollments, but without a national recruitment and retention strategy, which would enable international students to more easily stay and work in the U.S. after they graduate, the U.S. is at a disadvantage with other competitor countries. 

Under current law, international (or foreign) students applying for F-1 visas to study at U.S. colleges and universities enter the U.S. as “nonimmigrants”, which means that international students must show that they intend to enter the U.S. “temporarily and solely for the purpose of pursuing such a course of study.” By assuming all F-1 students will be “non-immigrants”, current law does not permit individuals who are being screened for a student visa or when entering the U.S.  to communicate an interest in transferring to another legal status or staying in the U.S. to build their career after the completion of their degree. 

In contrast, dual intent is an immigration law concept that allows a person to enter the United States with “nonimmigrant intent” (“I intend to leave the United States when my visa term is up”) while also maintaining the possibility of staying (“While in the United States, I also want to try to qualify for a more permanent status”). Dual intent is currently available in other nonimmigrant categories such as specialty workers (H-1B) and intracompany transferees (L-1).

Impact on Higher Education

From a higher education perspective, expanding dual intent for full time international students pursuing a U.S. degree would increase the attractiveness of the U.S. as a destination for talented international students in the competitive global marketplace, better match the expectations of many prospective and current international students, and align with the economic and national interests of the United States.

Optional Practical Training (OPT)/STEM OPT

Optional Practical Training (OPT) is an experiential learning opportunity and work program available to international students.  International students may participate in “pre-completion” OPT while enrolled or “post-completion” OPT, upon the completion of their studies.  OPT offers temporary employment authorization to international students in the United States, allowing eligible students and recent graduates to gain valuable work experience within their field of study. Standard  OPT is for 12 months.  STEM OPT offers eligible students with STEM degrees to apply for a 24 month extension. OPT/STEM OPT are key channels through which international students contribute to American higher education, innovation, scientific discovery, and economic growth. See post on OPT.

OPT/Stem OPT Resources

USCIS: Optional Practical Training for F-1 Students

DHS: STEM OPT Hub, Study in the States

NAFSA: Practical Training Reform

OPT Lockbox Delays (2020-2021)

In fall 2020 and winter 2021, there have been significant delays in processing of receipt notices for applications for benefits such as OPT that are filed at USCIS lockboxes.  In February 2021, USCIS took measures to provide international students relief due to the delays.  For updates, see NAFSA’s resources.

On-Going OPT/STEM OPT Litigation

The Washington Alliance of Technology Workers union (WashTech) filed suit in the U.S. District Court for the District of Columbia against both STEM OPT and the standard post-completion OPT.  On January 29, 2021, the federal district court judge in the WashTech litigation issued summary judgement in favor of the government and the intervenors in the case. The plaintiffs have filed for appeal. For more, see: 

NAFSA: STEM OPT Washtech Litigation

Presidents’ Alliance: OPT Amicus Brief Actions

OPT, H-1B Visa Program, and Green Card Availability

The H-1B visa program allows employers to contract non-citizens for high-skilled positions for a three-year term with the potential to renew this status for another three-year period. The program maintains 65,000 new visas each fiscal year, with an additional 20,000 visas available for non-citizens with a master’s degree or higher from a U.S. institution of higher education. The program also exempts institutions of higher education and affiliated nonprofit organizations from the H-1B cap. For those employers subject to the H-1B cap, the program distributes visas every year through a lottery that randomly selects employers that sponsored non-citizens for a H-1B visa or requested an extension of H-1B status for existing beneficiaries.

Impact on Higher Education

The H-1B program serves as one of the primary pathways for international alumni and professionals to stay and work in the U.S., and contribute to innovation, research, and the economy .

  • Between 2008 and 2018, for instance, the number of students on F-1 visas who transitioned to H-1B status was 352,268, growing from 28,794 to 49,894 during this period.
  • Individuals with Optional Practical Training (OPT) positions can also transition to H-1B status, creating another link for foreign students to remain in the United States.
  • Insider Higher Education: Keeping STEM PhDs.

Resources

Presidents’ Alliance, Directory of Immigration Recommendations and Developments under the Biden Administration

Presidents’ Alliance, Overview of Biden Administration Executive Actions 

NAFSA, Biden Administration Immigration Portal 

NAFSA, Biden Administration Higher Education Resources

Proposed Legislation

Dual Intent for International Students

The proposed Citizenship Act of 2021 (introduced in February 2021) removes the phrase that international students must show that they intend to enter the United States “temporarily and solely for the purpose of pursuing such a course of study,” and clarifies that full time international students do not have to show that they have “no intention of abandoning” their residency in a foreign country to enter as nonimmigrants. 

H-1B Visa Program and Green Card Availability

Congress should create a direct path to green cards for those international students graduating from U.S. higher education institutions who have the education and skills needed in our economy and have employers willing to sponsor them. Comprehensive immigration reform passed by the U.S. Senate in 2013 included such provisions.  

The new Citizenship Act of 2021 includes an important first step, but the legislative language should be modified to include master’s, bachelor’s, and associate’s degree holders from U.S. higher education institutions in the fields valued by U.S. employers. The Citizenship Act would also authorize an extension for non-immigrant visas, including F-1s for international students, if they have a pending visa petition or application (such as a H-1B) for more than one year. The provision allows for employment authorization when such extensions are granted. 

Resources

Presidents’ Alliance, Overview of President Biden’s Immigration Reform Legislation 

NAFSA, Biden Administration Immigration Portal 

American Council on Education, Summary of the Higher Education Provisions in the U..S. Citizenship Act

Other Immigrant Students

The sections below highlights current policies that impact higher education access, degree completion, and post-graduate career prospects for international students and scholars.

Current Federal Policies

H-4 Visa Work Authorization and “Aging Out”

The H-4 work authorization program, introduced in 2015 through executive action, allows certain spouses of H-1B recipients to receive work authorization. Although all spouses of H visa holders must have an H-4 visa in order to enter the United States, the visa does not provide them with an employment authorization document to legally work in the country. H-4 visa holders can access this benefit to work for any employer if their H-1B spouses have received approval for employment-based green cards but continue to wait for a green card to become available.  

H-4 dependents can attend any type of schooling program, which diverges from F and M students who must attend SEVP-certified school. However, they are not eligible for temporary employment related to their field of study like foreign students with categories such as F-1 status. 

Impact on Higher Education

The proposed Citizenship Act of 2021 includes provision to enable H-4 dependents to obtain work authorization and to prevent H-4 dependents (children of H-1 visa holders) from “aging out” of legal status. For more, see the Presidents’ Alliance overview of the proposed Citizenship Act of 2021.

Refugee Resettlement Program

The refugee resettlement program provides protections to individuals who have fled their countries due to “a well-founded fear of persecution for their race, religion, nationality, political opinion or membership in a particular social group.” The United States works to select and vet individuals located overseas to receive protection and come live in the United States. Once the United States selects individuals for resettlement, the government works with non-governmental organizations to integrate refugees into communities across the country. The president in consultation with congress sets the number of refugees the country will receive each year before October 1.

Impact on Higher Education

UNHCR reports 79.5 million people are displaced worldwide, including 26 million refugees. Of these, only three percent of college-eligible refugees are able to access higher education. UNHCR has set a goal of fifteen percent of eligible refugees accessing higher education by 2030. U.S. colleges and universities can and should help reach that goal. However, it is very difficult for refugee students to enter the U.S. as international students – the requirement of the F-1 visa does not match the reality of most refugee students (including that F-1 applicants must demonstrate that they intend to enter the U.S. “temporarily and solely for the purpose” of their academic program and they cannot communicate an interest in transferring to another legal status).  If the U.S. pilots a university sponsorship program for refugee students, this can serve as a crucial step toward expanding access to U.S. higher education for refugee students.

Refugees also face other obstacles to accessing higher education, including learning local languages and terms used in academic settings, understanding the new country’s higher education systems, financing their education in the United States, getting institutions to recognize their academic and professional credentials, and integrating into higher education institutions and on-campus life.

President Trump had set refugee resettlement numbers to 15,000 for 2021 – the lowest point since the program’s inception in 1980. In February 2021, President Biden issued an executive order to enhance and rebuild the refugee system, and submitted a Report to Congress on the Proposed Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021, which details his intention to increase the refugee cap for fiscal year 2021 from 15,000 to 62,500 due to the “unforeseen emergency refugee situation” caused by worsening country conditions and the effects of COVID-19. The report includes specific country conditions of note as well as a proposal for a pilot program to privately sponsor refugee resettlement cases. 

Temporary Protected Status (TPS) and Deferred Enforced Departure (DED)

Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) are form of humanitarian protection that provides work permits and protection from deportation for noncitizens who cannot be safely returned to their home country. Over 300,000 individuals are protected under TPS and over 200,000 individuals are protected under DED. While the Trump administration attempted to end TPS for the vast majority of these individuals, litigation these terminations were enjoined and are likely to be reversed under a Biden administration.

Impact on Higher Education

TPS holders represent students, staff, and faculty at many higher ed institutions. TPS also provides the security and financial stability (through work permits) for individuals to be able to attend and complete their higher education.

Most Recent Developments

On January 21, 2021, the Biden administration designated Liberia for DED, protecting more than 800 Liberian nationals in the United States. 

The Biden administration announced the designation of Venezuela for TPS on March 9, 2021, and the designation of Burma for TPS a few days later on March 12, 2021. USCIS estimates that 323,000 Venezuelan nationals will benefit from TPS protections, and approximately 1,600 Burmese nationals will benefit as well.

Resources

Overview of Biden Executive Actions on Immigration Related to Higher Education and Students

Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) (CLINIC)

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