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Legal Update

US House Discharge Petition Could Lead to DACA-Related Solution

5 June 2018
Mayer Brown Legal Update

A bipartisan group of US lawmakers has sought an unconventional route to address the status of undocumented individuals who came to the United States as children (“DREAMers”).1  Reps. Will Hurd (R-TX) and Carlos Curbelo (R-FL) have led an effort to get a majority of members of the House of Representatives to sign a “discharge petition” that would bring four different immigration proposals for debate and voting on the House floor as soon as June 25, 2018.

Many DREAMers have benefitted from the Obama-era Deferred Action for Childhood Arrivals (DACA),2 which the Trump Administration has sought to replace as part of its Framework on Immigration Reform and Border Security (“the White House Framework”). DACA-related proposals, however, have failed to move through the committee process in the House. The bipartisan group of lawmakers who have signed the discharge petition can force a vote in the House on four immigration proposals if they can obtain 218 signatures on the discharge petition. 

Reaching the requisite number of signatures in the House is the first of several hurdles to achieving a compromise on DREAMers and other immigration matters. Although the Republican leadership has suggested that the petition will gain the required signatures in the coming weeks, the House must then approve one or more immigration proposals, each of which must then be approved by the Senate and signed by President Trump. 

President Trump has suggested that he will likely veto any proposal that does not align with the White House Framework. The Framework includes a 10-12-year path to citizenship for the 700,000 DACA recipients, as well as other DACA-eligible immigrants, under revised criteria that could benefit an estimated 1.8 million individuals. But relief for the DREAMers would come at a cost. In addition to this measure, the White House Framework includes the following provisions:

  • Border security measures, including a $25 billion trust fund for a “border wall system,” funding for additional Department of Homeland Security personnel, an end to “catch and release,” increased funding for detention, expanded use of expedited removal, measures to prevent the importing of synthetic drugs, and “immigration court reforms to improve efficiency and prevent fraud and abuse.”
  • Limiting family sponsorships to spouses and minor children in an effort to end “extended-family chain migration,” which currently includes adult sons and daughters and siblings of US citizens in the family-based sponsorship categories.
  • Elimination of the Diversity Visa lottery program under which 50,000 citizens of underrepresented countries are admitted to the United States each year and “repurposing” the lottery visa numbers to help reduce the family-based and highly skilled employment visa backlogs.

If the discharge petition is successful, four different proposals would be debated on the House floor. The lineup includes three competing immigration compromises and a bill to be selected by House Speaker Paul Ryan (R-WI). The three competing compromises include:

  1. A proposal by Rep. Bob Goodlatte (R-VA) that closely aligns with the White House Framework;
  2. A proposal by Rep. Lucille Roybal-Allard (D-CA) that would provide permanent resident status and a pathway to citizenship for existing DREAMers; and
  3. A middle-ground proposal by Rep. Will Hurd (R-TX) that provides DREAMers with permanent resident status and a pathway to citizenship, while also eliminating some education benefits for undocumented students, increasing spending on border security and immigration courts, and increasing US presence in Central America.

The bill proposed by Rep. Goodlatte, H.R. 4760 – Securing America’s Future Act of 2018, contains the following provisions to revise immigrant visa allocation provisions, including family-related visas, as well as provisions to enhance immigration-related enforcement:

  • Make DACA beneficiaries eligible for a three-year renewable nonimmigrant visa allowing them to work and travel abroad. The proposal contains no direct path to citizenship, but recipients could make use of existing paths to obtaining green cards.
  • Family-based green card sponsorships would be limited to spouses and minor children of US permanent residents and US citizens;
  • Eliminate the Diversity Visa lottery program;
  • Increase the number of employment-based immigrant visas available;
  • Revise employment eligibility verification provisions to modify the current I-9 verification system;
  • Revise provisions for immigration enforcement, including practices for immigration enforcement and patrol of the Southern border.

In contrast to the Goodlatte proposal, the bill proposed by Rep. Roybal-Allard, H.R. 3440 – Dream Act of 2017, addresses a single subject by providing an eight-year conditional permanent resident status to DACA beneficiaries with requirements for education, medical examination, and good moral character. DREAMers would be eligible to apply for full permanent residence with requirements for education, employment, and eligibility for US citizenship.

The proposal by Rep. Hurd, H.R. 4796—Uniting and Securing American (“USA”) Act of 2018—seeks a middle ground between these proposals by incorporating the permanent residence proposal introduced by Rep. Roybal-Allard, while also incorporating enforcement-related and border-security proposals in line with those favored by the White House Framework and the Goodlatte proposal. 

Should the House effort produce an approved bill, the Senate could take up the bill or pass its own measure.  Sen. John McCain (R-AZ) previously proposed a Senate companion bill to Rep. Hurd’s USA Act, which Sen. McCain introduced with Sen. Chris Coons (D-DE) in February 2018 but failed to receive enough votes to pass. Other bills proposed in the Senate include a compromise proposal by Sens. Jeff Flake (R-AZ) and Heidi Heitkamp (D-ND), as well as a competing proposal by Sens. John Thune (R-SD), Rob Portman (R-OH), and Jerry Moran (R-KS).

A veto threat from the president, of course, could bring Senate action to a grinding halt, and the November midterm elections will play a role as well. June and July will be interesting months for those following this important issue.

1 “DREAMers” references the proposed Development, Relief, and Education for Alien Minors (“DREAM”) Act, which was first proposed in 2001 and sought to provide legal status to certain undocumented immigrants who were brought to the United States as children.

2 DACA protections benefit individuals who:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching their 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making the DACA request;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

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