Legislation Addresses Issues Faced By U.S.-Raised Undocumented Youth

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

LEGISLATION ADDRESSES ISSUES FACED BY U.S.-RAISED UNDOCUMENTED YOUTH
Immigrants' Rights Update, Vol. 17, No. 3, June 3, 2003

The issues and challenges faced by U.S.-raised undocumented youth have been the subject of a surge of interest by advocates and lawmakers over the past year. These young people arrived in the United States as children, attended school here, and frequently have had limited contact with or knowledge of their countries of origin, but they have nevertheless derived undocumented immigration status from the circumstances of their arrival in this country with undocumented parents or other adults. The Urban Institute, a Washington-based think tank, estimates that from 50,000-65,000 such young people graduate from high school each year after having lived in the U.S. for at least five years. Under current law, they are treated the same as any other undocumented immigrant, unable to work legally and subject to deportation to countries of which they may have only the vaguest memories.

Efforts on behalf of these young people have focused on ensuring that they have a fair opportunity to attend college and giving them a chance to apply for legal residency. At the federal level, concern for these students has manifested itself in growing attention to bipartisan legislation-the Student Adjustment Act (H.R. 1684) in the House and the soon-to-be reintroduced DREAM Act in the Senate-that would address both of these issues. At the state level, it has led to a large number of impressive campaigns to convince state legislatures to permit some of these students to attend state-funded institutions at the same tuition rate as other state residents.

Federal law currently limits, but does not prohibit, a state's ability to offer any higher education benefits, including in-state tuition rates for state colleges and universities, to residents without regard to immigration status. As a result, many immigrants are forced to pay nonresident rates, which are generally two to five times higher than the in-state rates, or else to forego college altogether.

The federal limitation is found in section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, 8 U.S.C. sec. 1623), which provides that any state that grants a higher education benefit to state residents who are not lawfully present in the U.S. must provide the same benefit to U.S. citizen residents of other states. Section 505 would be repealed by the DREAM Act and the Student Adjustment Act, each of which would also provide a path to legalization for students who have lived in the U.S. for at least five years and who can show that they are of good moral character.

But state organizers and advocates have not waited for section 505 to be repealed. Instead, they have pressed their legislatures to pass laws that meet the requirements of section 505 while permitting most undocumented students to attend state schools at in-state rates. Though the specifics differ, the state proposals essentially do this by providing in-state rates regardless of residency to students who have attended and graduated from in-state high schools.

The first state to enact such legislation was Texas, in 2001, followed later that year by California. In 2002, Utah and New York followed suit. This year three more state legislatures passed proposals; the governors of Washington, Oklahoma, and Illinois signed the legislation in May. Fifteen other states have introduced similar bills, many of which are either still pending or have made sufficient progress that prospects appear good for passage next year.

It is interesting to note that more than 60 percent of all undocumented immigrants residing in the U.S. live in states that have already passed legislation permitting undocumented students to attend state schools at in-state rates. Of the states that have not yet done so, the largest undocumented population is in Florida, where prospects for passage next year appear excellent. The Florida bill enjoys strong bipartisan backing, including the support of legislative leaders and Governor Jeb Bush.

Those states that have already passed legislation are making a human capital investment in these young people that is likely to be repaid many times over in increased tax receipts and decreases in social services and criminal justice costs. But for that to happen, the federal government will have to relax immigration laws as provided by the DREAM Act and the Student Adjustment Act so that the students can adjust their immigration status and pursue their careers.

Please click on the following link for a comprehensive table of State Proposed or Enacted Legislation Regarding Immigrant Access to Higher Education.