Dreamer Provisions in the Border Security and Immigration Reform Act of 2018

Republicans in the U.S. House of Representatives, including Republican leadership, moderate Republicans leading the discharge petition effort, and Freedom Caucus members, developed the Border Security and Immigration Reform Act of 2018 (H.R. 6136) as part of the negotiations on an immigration bill that would address the situation of Dreamers. The bill is a wide-ranging proposal that would transform America’s immigration system. This document provides a summary of the bill’s provisions related to Dreamers.

What Do the Provisions Addressing Dreamers Do?  

• The bill would create a six-year “contingent nonimmigrant” status that would allow Dreamers with DACA or who were eligible for DACA to be protected from deportation, work legally in the U.S., travel outside the country and, if they meet certain requirements under a points-based system, earn the ability to become a lawful permanent resident.
• To qualify for “contingent nonimmigrant” status, Dreamers would need to meet the following requirements and apply for the program within one year of when the final rule to implement the law is published in the Federal Register:
  • Establish that they came to the U.S. before the age of 16 and were physically present in the U.S. on June 15, 2007;
  • Have lived continuously in the U.S. since at least June 15, 2012 and demonstrate that on that date they were younger than 31 years old and had no lawful status in the U.S.;
  • Pass several government background checks, demonstrate “good moral character” with no felonies, significant misdemeanors, or multiple misdemeanor convictions, pay any applicable federal state or local taxes;
  • Have not failed to comply with the requirements of any removal order or voluntary departure agreement and/or have not been ordered removed in absentia; and
  • Prove that they are enrolled in or have acquired a diploma or degree from a high school in the U.S. or an equivalent.
• Contingent nonimmigrant status could be extended for additional six-year terms as long as the individual continues to meet the bill’s requirements.

Additional Provisions

• Dreamers would need to pay an application fee to cover the full costs of processing the application. Also, they would need to pay a one-time $1,000 fee to help fund the bill’s border provisions.
• The Department of Homeland Security (DHS) would not be able to use the information provided in an application for contingent nonimmigrant status for the purpose of apprehending or deporting the parents of the applicant.
• Dreamers over the age of 18 would need to demonstrate that they are able to maintain an annual income that is at or above 125 percent of the Federal poverty level in order to obtain contingent nonimmigrant status, unless he or she is enrolled full-time in school, unable to maintain such an income because of a physical or developmental disability, is the primary caregiver of a child under 18 years of age or the primary caregiver of an individual 18 years of age or over who incapable of self-care.
• The DHS Secretary may extend the one-year period to apply for contingent nonimmigrant status by 90 days.

Points-Based System for Dreamers

• The bill would allow Dreamers who hold contingent nonimmigrant status to apply to adjust to lawful permanent resident status, also known as a green card, through a points-based system beginning on the sixth year they have had contingent status.
• In addition, the children of E-1, E-2, H-1B and L visa workers who were brought by their parents to the U.S. before the age of 16 and maintained lawful status in the U.S. for 10 years before the bill’s enactment would be eligible to apply to adjust to lawful permanent resident status through the bill’s points-based system.
  • This provision attempts to address the problem of children of E-1, E-2, H-1B and L nonimmigrant visa holders who are at risk of “aging out,” i.e., turning 21 years old and losing their ability continue to live legally in the U.S. as a dependent of a legal visa holder until an immigrant visa becomes available, at which point the family can adjust to lawful permanent status.
• Under the bill, individuals receive a total point score based on education, employment, military service, and English proficiency. A minimum of 12 points are required to be able to adjust to LPR status under the bill.
  • Section A: Education. Award points to individuals for degree that represents his or her highest level of educational attainment as shown in the table below.

• • Section B: Employment. Award the following number of points for each two-year period in which an individual is employed on a full-time basis:
    • 1/3 of the points described in the Education Table provided in Part A for the lowest degree that is required for any position held during such two-year period.
    • For instance, a petitioner employed for a two-year period in a position that requires at a minimum a bachelor’s degree would receive 5 points. (15 points / 3 = 5 points).
  • Section C: Military Service. Award 30 points to an individual who served in the U.S. Armed Forces or a reserve component of the U.S. Armed Forces for at least three years and did not receive a dishonorable discharge.
  • Section D: English Language Proficiency. Award points for English proficiency based on the petitioner’s score placement on an English language proficiency test as described in the table below.

Immigrant Visa Distribution

• DHS would not be able to award visas under this section to Dreamers or the children of E-1, E-2, H-1B and L visa workers if any of the $23.4 billion provided for border measures and family detention funding (to be distributed between FY 2018 to FY 2026) is rescinded or transferred to another account for purposes other than those measures.
• Beginning in fiscal year (FY) 2025, the DHS Secretary would award visas to individuals seeking to adjust to lawful permanent resident status by selecting one candidate with the most points in each of the four categories below and in the following order:
  • Child of an E visa worker;
  • Child of an H-1B visa worker;
  • Child of an L visa worker; and
  • An individual (Dreamer) with contingent nonimmigrant status.
• The DHS Secretary would repeat the process above until all visas made available for that period are issued. If no applicants remain for any such category, the DHS Secretary would exclude that category from further consideration for that period.
• In cases where more than one applicant under the same category has the same total point score, the individual who filed his or her application earliest will receive the visa.
• DHS would award 470,400 visas in FY 2025 and at most 78, 400 visas for each fiscal year thereafter until all applications are processed and all approved applicants have received lawful permanent resident status.
• When no eligible applicants remain, the visas made available under this bill will be eliminated.
• The visas awarded under this section would come from eliminating the Diversity Visa Program (55,000 visas) and the F-3 family-based immigration category for married children of U.S. citizens (23,400 visas). These visas would be held in escrow annually for the five years following the bill’s enactment until they are released beginning in the sixth year of the program, estimated to be FY 2025.
• An individual with contingent nonimmigrant status who enlists in the U.S. Armed Forces could apply for naturalization through Sections 328 and 329 of the Immigration and Nationality Act (INA), which provide an expedited naturalization process for immigrants in the military.