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Immigration Policies Impacting Undocumented, International, Refugee and other Immigrant Students

Undocumented Students

There are currently more than 408,000 undocumented students enrolled in postsecondary education, representing about 1.9 percent of all postsecondary students.

While most undocumented students pursuing postsecondary education do not have DACA, the vast majority, accounting for three out of four undocumented students, came to the U.S. at a young age. Without U.S. citizenship or permanent residency, these students face significant barriers to higher education.

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

Documented Dreamers and undocumented students with and without DACA are unable to access federal financial aid. In addition, many states do not allow undocumented students to pay more affordable in-state tuition rates and preclude them from accessing in-state financial aid. These barriers can significantly impact students’ ability to pursue higher education, as well as their post-graduate employment opportunities.

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): What is it, and who benefits?

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. It does not provide a path to citizenship.

Less than half of the 408,000 undocumented students currently enrolled in higher education are eligible for or currently benefit from DACA. Projections for undocumented students graduating from high school are even smaller: while nearly 100,000 undocumented students are graduating high school annually, only a quarter of them are estimated to be eligible for DACA. Many of these students arrived in the United States as children and meet the same criteria as current DACA recipients. 

Latest Developments

Administration Actions

January 20, 2021. The Biden administration issues Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), a new memorandum that directed the DHS Secretary to “fortify and protect” DACA. The issuance of this memorandum signals the start of official rollbacks of the Trump administration’s efforts to end DACA. 

September 28, 2021. The Biden administration issues a new regulation to formally meet the goals of the memorandum. The administration begins 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. 

August 30, 2022. DHS issues the final regulation.

October 31, 2022. The rule becomes effective. 

February 14, 2023.  USCIS issues new guidance requiring adjudicators to make it possible for individuals to maintain their dependent status for longer periods of time. Under the provisions of this guidance, individuals who previously aged out are potentially able to reopen past denials by filing a Notice of Appeal or Motion.

Litigation

Litigation against DACA began in 2018 and is currently ongoing. The timeline below outlines key moments over the last several years impacting the program’s future. 

May 1, 2018. Seven states file 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. 

July 16, 2021. The U.S. District Court for the Southern District of Texas agrees and vacates the original memo that created the program.

September 10, 2021. The Biden administration appeals the decision to the Fifth Circuit of the Court of Appeals. New DACA regulation is released several weeks later.

October 5, 2022. The Fifth Circuit rules that DACA’s creation violated the Administrative Procedures Act and remands the case to the U.S. District Court for review. 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. 

October 14, 2022. The court maintains the same conditions for the program and asks the administration to provide additional information in order to make a final ruling. 

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

September 13, 2023. Judge Hanen of the United States District Court for the Southern District of Texas finds the 2022 DACA regulation unlawful, writing that it was not materially different from the 2012 DACA memorandum he and the Fifth Circuit Court of Appeals previously found to be unlawful on both procedural and substantive grounds. Judge Hanen stays the order terminating DACA as to existing recipients, allowing DHS to continue to process renewals. 

November 9, 2023. The Mexican American Legal Defense and Educational Fund (MALDEF) files a notice of appeal, arguing that the states failed to prove injury from DACA’s implementation and that the rule is a lawful exercise of presidential discretion and requesting that the Fifth Circuit review Hanen’s ruling.  

What’s next? The case now goes back to the Fifth Circuit Court of Appeals. The briefing stage will take place in early 2024, followed by oral arguments. The decision by the Fifth Circuit could be issued in the summer or fall of 2024. It is widely expected that the Fifth Circuit will uphold Judge Hanen’s ruling that the DACA program is unlawful and that the case will then be appealed to the Supreme Court.

Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)

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. 

Resources

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

PRWORA also 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.

Resources

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).

Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA)

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.

Resources

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

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.

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,
  • Received a degree from an institution of higher education or completed at least two years or a program leading to a degree or served in the U.S. military for at least two years or 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 have been eligible for lawful permanent resident (LPR) status. Under the Dream Act of 2023, close to three million undocumented youth and young adults would be potential beneficiaries. Nearly one million people could become eligible if they enroll in school. The bill would also repeal barriers for states seeking to offer in-state tuition for undocumented immigrants.

H.R.6 – American Dream and Promise Act of 2023

H.R.6 – The American Dream and Promise Act, was introduced by Representative Sylvia Garcia (D-TX) in June 2023. 

Through this bill, undocumented youth who came to the U.S. as minors would become eligible for conditional permanent resident status for ten years if they:

  • Are deportable or inadmissible; 
  • Have deferred enforced departure status (DED) or temporary protected status (TPS); or,
  • Are a child of certain classes of nonimmigrants. 

To qualify, applicants must demonstrate continuous presence in the United States since January 1, 2021, pass a background check, and enroll in or complete an educational program. 

This bill would also restrict states from providing higher education benefits to undocumented students unless those benefits are also made available to all U.S. nationals without regard to residency in the state.

H.R.3194 – U.S. Citizenship Act

H.R.3194 – the U.S. Citizenship Act was introduced in the House in May 2023 by Rep. Linda Sanchez (D-CA).  This bill seeks to establish a new “lawful prospective immigrant” status for noncitizens who have been in the United States since January 1, 2021 and pass a background check.

Under this bill certain non-citizens would be eligible for permanent resident status if they:

  • Entered the United States as a minor; 
  • Were eligible for temporary protected status or deferred enforced departure on January 1, 2017; or,
  • Worked a certain amount of agricultural labor in the five years prior to applying. 

Eligible Dreamers, TPS recipients, and agricultural workers would be immediately eligible for green cards, as would their spouses and children. Individuals who qualify for lawful prospective immigrant status under this bill may be able to apply for permanent resident status after five years.  

This bill also seeks to address the root causes of migration, create safe and legal channels for migration, modernize the border, and protect border communities. Key provisions include: 

  • Redirecting financial resources to modernize procedures at southern ports of entry;
  • Funding the President’s 4-year plan to increase assistance to El Salvador, Guatemala, and Honduras to reduce corruption, violence, poverty, and famine; and
  • Requiring agent training and oversight to address instances of criminal misconduct 

H.R.3599 DIGNIDAD/Dignity Act

H.R. 3599 – the Dignity for Immigrants while Guarding our Nation to Ignite and Deliver the American Dream Act of 2023 (the DIGNIDAD (Dignity) Act), presents opportunities for removal deferral for eligible noncitizens and increases funding for activities related to border security.

Dignity status would grant undocumented people who meet eligibility criteria permanently renewable legal status, along with work and travel authority. 

To participate in the program, Dignity beneficiaries must: 

  • Pass a criminal background check; 
  • Begin or continue paying taxes and pay any outstanding taxes; and
  • Pay $5,000 over the course of 7 years (the duration of the program) 

The Dignity Act addresses a variety of other topics, including: 

  • Funding for border personnel and equipment; 
  • Pathways to citizenship for undocumented immigrants who entered the United States as minors; 
  • Policies pertaining to the treatment of minors without lawful status; 
  • Plans for addressing visa backlogs; and 
  • Policies requiring employers to verify individuals’ employment eligibility, 

among others. 

S.1852 – SUCCEED Act

The SUCCEED Act (S.1852) authorizes the Department of Homeland Security (DHS) to cancel the removal of undocumented migrants who entered the United States as children and grant them conditional permanent resident status if they:

  • Came to the United States before the age of 16;
  • Have lived in the United States continuously since June 15, 2012; and
  • Demonstrate that they were younger than age 31 on June 15, 2012 and had no lawful status in the United States at that time.

To qualify, applicants cannot have a criminal history and must demonstrate good moral character, educational attainment and/or military service, and compliance with tax responsibilities. The bill would allow undocumented individuals to apply for naturalization five years after adjustment to lawful permanent resident status and to apply for lawful permanent residence after 10 years of conditional status. 

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 the America’s CHILDREN Act. This act 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.

Resources

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.

Resources

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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