Senators Propose Bipartisan Bill to Secure Relief for DREAMers

On December 9, 2016, Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) introduced bipartisan legislation that would provide DREAMers with employment authorization and temporary protection from removal. The term “DREAMers” refers to young people who were brought to the United States, as children, without authorization. The bill has been named the BRIDGE Act, which stands for “Bar Removal of Immigrants who Dream and Grow the Economy.” Ultimately, the BRIDGE Act is an effort to codify President Obama’s 2012 DACA initiative in the face of anticipated restrictionist changes that President Donald Trump is widely expected to undertake.

President Obama’s DACA Program

On January 15, 2012, the Secretary of Homeland Security issued a memorandum that provided deferred removal action against DREAMers and provided them with employment authorization. This executive order, called DACA, stands for “Consideration of Deferred Action for Childhood Arrivals.” Eligible individuals who qualify under DACA’s specific requirements are permitted to apply for “protected status” and employment authorization. While DACA does not provide lawful status, it does provide deferred removal action and is subject to renewal. Because DACA is an executive order, the future of the program is unsettled. Just as President Obama created the program through executive action, President Trump may use the same mechanism to repeal it after his inauguration. Due to this uncertainty, Senators Durbin and Graham have introduced bipartisan legislation, S. 3542, which aims to continue the benefits afforded to DREAMers by the DACA program.

Senate Bill: The BRIDGE Act

The BRIDGE Act would provide DREAMers with provisional protected presence and employment authorization for a three-year period after the date of its enactment. Current DACA recipients would receive provisional protected presence until the expiration of their DACA status, and would be able to apply for provisional protected presence under the BRIDGE Act prior to the expiration of their DACA status. Additionally, individuals eligible for DACA, who are not DACA recipients, could also apply for provisional protected presence and employment authorization. Under the BRIDGE Act, applicants would be required to meet a number of eligibility criteria prior to approval. These criteria are essentially the same as those currently used to determine eligibility under DACA. To ensure continued compliance, the benefits provided by the BRIDGE Act would be subject to revocation by the U.S. Department of Homeland Security if an individual no longer meets the eligibility criteria.

To be eligible under the BRIDGE Act, an applicant must have

1. been born after June 15, 1981;
2. come to the United States before his or her sixteenth birthday;
3. lived continuously in the United States since June 15, 2007;
4. continuously resided in the United States from June 15, 2007, until the date of filing an application under the BRIDGE Act (except for travel using advance parole);
5. been physically present in the United States on June 15, 2012, and at the time of filing an application under the BRIDGE Act;
6. not had a lawful immigration status on June 15, 2012;
7. at the time of filing an application under the BRIDGE Act, be currently in school or in an educational program aimed at obtaining a high school diploma or passing a GED exam—or, at the time of applying, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or be an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces; and
8. not been convicted of a felony offense, significant misdemeanor, or three or more misdemeanor offenses, or been deemed to pose a threat to national security or public safety.

Potential Impact on Employers

Due to the large number of affected individuals, the BRIDGE Act would likely impact employers across the country. Recent estimates indicate that nearly 800,000 individuals have already enrolled in the DACA program. Because the BRIDGE Act would provide continued employment authorization to these individuals, employers throughout the United States would be able to continue to employ DREAMers lawfully. Additionally, because the BRIDGE Act would provide employment authorization to eligible individuals who have not enrolled in DACA, it is likely that the number of individuals impacted by its enactment would continue to grow. Conversely, if the BRIDGE Act is not passed and President Trump ultimately repeals DACA, these decisions would have the potential to noticeably impact the U.S. labor market by stripping approximately three-quarters of a million individuals of their employment authorization and provisional protected presence.

What’s Next?

Unlike DACA, which was created by President Obama’s executive action, the BRIDGE Act would be enacted legislation authorizing the Secretary of Homeland Security to grant provisional protected presence and employment authorization to eligible individuals. To become law, the bill must pass through several lengthy procedural steps including passage by both the U.S. Senate and House of Representatives, and ultimately be signed by the president. The early signs indicate a positive response by both political parties as the bill has already gained bipartisan support. Additionally, widespread momentum continues to build for measures to protect DREAMers. It remains uncertain whether President Trump would sign such a bill into law. The president has repeatedly stated that he intends to repeal President Obama’s immigration-related executive actions. However, it is notable that President Trump’s recent public comments concerning DREAMers have been more sympathetic, which may indicate his willingness to consider a compromise. In fact, the BRIDGE Act, which is awaiting action before the Senate Judiciary Committee, may afford the president an opportunity to follow through with his promise to repeal DACA, while also compromising with those who support measures to protect DREAMers. Ultimately, the BRIDGE Act may serve as a win-win initiative for President Trump.

Ogletree Deakins will continue to monitor for updates as further information becomes available.