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Undocumented Students

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

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 protection from deportation. DACA is temporary and can be revoked by the federal government and does not provide a path 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, less than half of these students benefit from DACA or are eligible for DACA. Nearly 100,000 undocumented students are graduating high school annually, and only a quarter of them are estimated to be eligible for DACA. Of the 100,000 undocumented students graduating from U.S. high schools annually, the percentage who benefit from DACA is even smaller: only one quarter of students entering college today are eligible for DACA, even though many also arrived in the U.S. as children.

Without U.S. citizenship or permanent residency, these students face many immigration-related barriers to higher education and careers. In addition to being unable to access federal financial aid, many states do not allow them to pay the more affordable in-state tuition or access in-state financial aid. Federal, state, and institutional policies can also limit their access to higher education, paths to degree completion, and post-graduate career prospects.

Another group in this category are certain children who arrive with a parent who has an H-1B high skill visa or certain other nonimmigrant visas. Currently, these individuals can maintain their legal status as the visa holder’s dependent until the age of 21. If their parents do not secure a green card before the dependent reaches 21, however, these children “age out” of their dependent status and must leave the United States even when the parent is waiting to file a green card application after DHS approved their green card petition. Young people in this situation have referred to themselves as “Documented Dreamers.”

Latest Developments

Administration Actions. 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. On September 28, 2021, the administration issued a new regulation to formally meet these goals, including going through the notice and comment process to address criticisms that the first memo did not comply with the Administrative Procedures Act, the formal process by which federal agencies develop and issue regulations. 

On August 30, 2022, DHS issued the final regulation, with the rule becoming effective on Monday, October 31, 2022. 

The administration has also taken steps to mitigate some of the problems facing individuals who “age out of their status.” On February 14th, USCIS issued new guidance that requires the agencies’ adjudicators to use a method of calculating when an individual ages out that makes it possible for an individual to maintain their dependent status for longer periods of time. Individuals who previously aged out might be able to reopen past denials by filing a Notice of Appeal or Motion.

Litigation.  Litigation against the program has placed its future in question. On May 1, 2018, seven states filed a lawsuit against the program, arguing that the Department of Homeland Security does not have the authority to grant the protections provided in the program. On July 16, 2021, the U.S. District Court for the Southern District of Texas agreed and vacated the original memo that created the program, leading the Biden administration to appeal the decision to the Fifth Circuit of the Court of Appeals on September 10, 2021, and release the new DACA regulation weeks later.

On October 5, 2022, the Fifth Circuit ruled that the program’s creation violated the Administrative Procedures Act and remanded the case to the same U.S. District Court to review the case based on the new regulation. Although the court preserved the deportation protections and employment authorizations for current DACA recipients and permitted DHS to process renewals, it prohibited the agency from receiving new applications. On October 14, 2022, the court maintained the same conditions for the program as it asked for additional information about the new rule from the administration to make a final ruling on its legality, a decision that will likely lead directly to the U.S. Supreme Court.

On February 1, 2023, the same group escalated its efforts to end the program by filing a motion pressing the U.S. District Court overseeing this litigation to determine whether the 2022 DACA rule is also unlawful and block the government from approving renewal applications two years after a decision is made.


Breakdown of Dreamer Populations – With and Without DACA (Presidents’ Alliance, December 2022)

Deferred Action for Childhood Arrivals (DACA) (National Immigration Law Center (NILC))

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. Approximately 23 states and D.C. offer in-state tuition to undocumented students. 

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. 


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

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 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, which can significantly impact their economic stability in the United States.


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

Leaving Money on the Table: The Persistence of Brain Waste among College-Educated Immigrants (Migration Policy Institute (MPI), 2021). 

The Skills and Economic Outcomes of Immigrant and U.S.-Born College Graduates (Migration Policy Institute (MPI), 2022).

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 23 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, including an existing legal challenge in Texas, 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.


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


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

The deadline for REAL ID enforcement has been extended to May 7, 2025, due to the COVID-19 pandemic.

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 18 states and D.C. provide undocumented individuals with access to driver licenses, these licenses are usually not REAL ID-compliant.

Proposed Legislation

Dream Act of 2023

In February 2023, Senators Dick Durbin (D-Illinois) and Lindsay Graham (R-South Carolina) introduced the Dream Act of 2023 (S. 365). 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.

Under the Dream Act of 2021, the prior iteration of this bill, 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 the Migration Policy Institute here.

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

America’s CHILDREN Act

In order to provide relief for “Documented Dreamers,” a bipartisan group of lawmakers introduced the America’s Cultivation of Hope and Inclusion for Long-term Dependents Raised and Educated Natively Act of 2021 (H.R. 4331), or America’s CHILDREN Act, that allows the children of temporary work visa holders who graduated from U.S. institutions of higher education and meet other requirements the ability to directly apply for a green card. Although Congress did not pass this bill, there were discussions to add similar language in the Fiscal Year 2023 National Defense Authorization Act as an amendment for the bill.

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, although the Biden-Harris administration did release a Joint Statement of Principles to guide agencies in their work related to international education. As other countries are proactively implementing politics to attract and retain the best and brightest from around the world, the White House should develop and implement a coordinated U.S. International Education strategy, and each agency should set clear goals and strategies for how to attract, support and retain a greater diversity of international students pursuing their degrees and work opportunities in the United States.

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, single-intent “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. 

International (or foreign) students applying for F-1 visas to study at U.S. colleges and universities arrive in the country 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 and the Economy

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 country’s economic and national interests. In contrast to countries such as Canada, the U.S. also does not have a proper entrepreneur visa that would allow foreign students to start their own firms, a pathway that largely does not exist for H-1B holders since they must work for a sponsoring employer at a designated worksite.

Next steps: Although the Biden Administration has made progress in clarifying how consular officers should interpret non-immigrant intent for students, Congressional legislation is needed that would 1) update INA language to remove the requirement to maintain a foreign residence abroad for F visa applicants, and 2) expand the list of visas eligible for dual intent to include F-1s.

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 Presidents’ Alliance post on OPT.

OPT/Stem OPT Resources

Optional Practical Training for F-1 Students (USCIS, 2022).

STEM OPT Hub, Study in the States (DHS, 2022).

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.

Special Student Relief

DHS has the authority to designate countries experiencing severe economic hardship due to humanitarian concerns for Special Student Relief (SSR), which suspends certain regulatory requirements for F-1 students from these countries. SSR can suspend restrictions related to on- and off-campus employment and alter the full course of study requirements for eligible F-1 students by permitting a reduced course load.

Most Recent Developments

The Biden administration has issued an increased number of SSR designations in recent years for countries facing significant conflicts or humanitarian disasters. A chart with current SSR designations can be found below.


Special Student Relief Designations and Decision Dates (Chart Regularly Updated) (TPS-DED AAC, 2022).

Refugee and other Immigrant Students

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

Current Federal Policies

Refugee Resettlement Program

The U.S. Refugee Admissions Program (USRAP) 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 U.S. government selects and vets 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

Over 100 million people are displaced worldwide, including 32.5 million refugees as of the end of mid-2022. Of these, only six percent of college-eligible refugees can 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 since the F-1 visa’s requirement does not match the reality of most refugee students. F-1 applicants must demonstrate their intention 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.

Although President Biden has made public commitments to resettle more refugees after several years where the Trump administration significantly lowered these numbers, the administration has not fulfilled them. On May 3, 2021, the administration announced it would raise the refugee cap from the 15,000 individuals the Trump administration set for Fiscal Year 2021 – the lowest point since the program’s inception in 1980 – to 62,500, a move that followed the release of a February 2021 executive order to enhance and rebuild the refugee system. While the administration stated it increased the cap due to emerging refugee emergencies around the world, the United States only received 11,411 individuals that year.

The same pattern occurred for Fiscal Year 2022. On October 8, 2021, the administration announced it would accept 125,000 refugees for Fiscal Year 2022. On September 8, 2022, the administration reported it would only receive between 23,000 to 25,000 individuals, an outcome that has been attributed to the significant resources needed to assist with the reception of Afghans and Ukrainians fleeing violence in their countries. In 2021, the U.S. evacuated 76,000 Afghans and charged the refugee resettlement agencies with providing resettlement services through the Afghan Placement & Assistance (APA) program. Furthermore, over 38,000 have arrived in the U.S. from Ukraine through the Uniting for Ukraine program and another 75,000 are approved for travel. Nevertheless, the administration committed to resettling the same number of individuals for Fiscal Year 2023 on September 27, 2022.

The Biden administration has expanded the ability of private individuals in the United States to assist and resettle refugees and other displaced individuals. In October 2021, the administration introduced the Sponsor Circle for Afghans, a program that allowed a group of individuals to provide financial support for Afghans who were evacuated to the United States during the U.S. Withdrawal from Afghanistan. In January 2023, the administration unveiled the Welcome Corps, which will allow individuals and organizations like universities to support the arrival of refugees admitted through the U.S. Refugee Admissions Program. The program will eventually allow these entities to refer individuals for admission through the USRAP and assist with their reception. The administration will announce a similar program for higher education institutions in 2023.

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

Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) are forms of humanitarian protection that provide 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. 

Impact on Higher Education

TPS holders represent students, staff, and faculty at many higher education 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

Litigation against the Trump administration’s decision to end TPS for most recipients in 2018 may have failed to produce lasting protection for these groups. After President Biden came into office in January 2021, the administration aimed to settle the litigation through a series of negotiations with the plaintiffs’ attorneys, a move that saw it pause the Trump administration’s efforts to challenge these cases in the courts.

On October 27, 2022, however, these talks collapsed after both sides failed to reach an agreement on the scope of protection for these individuals. This development means approximately 337,000 TPS recipients from El Salvador, Nicaragua, Nepal, and Honduras may lose their status depending on whether the U.S. Court of Appeals for the 9th Circuit, which rejected a lower court ruling against the decision in September 2020, accepts the plaintiffs’ request to rehear the case with the full roster of judges or deny this request. On February 11, 2023, the 9th Circuit announced it would hear the cases with the full roster of judges.

In response to this situation, the Biden administration issued a Federal Register Notice on November 10, 2022 stating that these TPS recipients will retain their status while the preliminary injunction against the decision to end TPS for these groups remains in place. DHS also automatically extended the Employment Authorization Documents and other TPS-related documents for this group through June 30, 2024.


Temporary Protected Status and Deferred Enforced Departure Designations and Decision Dates (Chart Regularly Updated) and Resources (TPS-DED AAC, 2022).

H-4 Visa Work Authorization

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 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 who are children of H-1B visa holders are not eligible to receive work authorization employment.


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