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FAC T S A BO U T

The ACHIEVE Act of 2012

DECEMBER 2012

he Assisting Children and Helping Them Improve Their Educational Value for Employment (ACHIEVE) Act (S. 3639) would permit certain individuals who entered the United States at an early age to obtain a new nonimmigrant status. The ACHIEVE Act was introduced by Senators Jon Kyl (R-AZ) and Kay Bailey Hutchison (R-TX). The bill shares many similarities with Deferred Action for Childhood Arrivals (DACA), an administrative program that authorizes grantees to live in the U.S. and to obtain a work permit. Both the ACHIEVE Act and DACA were inspired by the DREAM Act, the historically bipartisan legislation that provides a path to U.S. citizenship and access to higher education to undocumented youth. Unlike the DREAM Act, however, the ACHIEVE Act and DACA provide for only temporary relief and do not include a dedicated path to citizenship.1

What would the ACHIEVE Act do?

The ACHIEVE Act would create the W visa, a new nonimmigrant status consisting of three categories: W-1, W-2, and W-3. While in W status, an individual would be able to serve in the U.S. military, travel under certain conditions, and work. People who wanted W status would have to apply first for W-1 status. After six years in W-1 status, they would be able to apply for W-2 status. After an additional four years in W-2 status, they would be able to apply for W-3 status. W-3 status could be held for renewable periods of five years.

Who would qualify for W-status?

In order to qualify for W-1 status, an applicant would have to: Have lived in the U.S. continuously for five years prior to the ACHIEVE Acts day of enactment;

The text of the ACHIEVE Act suggests that an individual who joined the military would be able to apply for a special path to lawful permanent residence after four years of service and an honorable discharge. However, existing citizenship laws allow individuals who serve during periods of military hostilities to apply for citizenship immediately upon joining the military, regardless of whether they are permanent residents. The U.S. has been in a period of military hostilities since September 11, 2001. So its not clear what special path, if any, the ACHIEVE Act would provide to permanent residency for those joining the military.
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Have entered the U.S. prior to the age of 14; Be younger than 29 on the day that the law is enacted; 2 Have obtained a high school diploma or a general educational development (GED) certificate; Not have been convicted of any crime punishable by imprisonment for more than 30 days, even if they only paid a fine or were sentenced to community service; Not be inadmissible to the U.S. for various reasons, including for certain health conditions or making false claims to U.S. citizenship; Not have been ordered deported from the U.S. or turned away at the border in certain circumstances; Submit to a medical exam and background check, and report to a designated facility to have their biometrics (fingerprints and photo) taken; and Pay a fee of $525. In addition, undocumented male applicants between the ages of 18 and 26 would have to be registered with the Selective Service. In order to graduate to W-2 status, an applicant would have to: Maintain W-1 status for six years; Submit reports to the U.S. Department of Homeland Security (DHS) every six months; Fulfill one of the following during the course of being in W-1 status: o Serve four years in the U.S. military; o Obtain a bachelors degree (or be employed for four years, if the applicant already had a bachelors degree before applying for W-1 status); or o Obtain an associates degree and be employed for no less than 30 months. Have an offer of employment in the U.S. or be pursuing a graduate degree; Submit to a new background check and report to a designated facility to have their biometrics (fingerprints and photo) taken; and Pay a fee of $750. In order to graduate to W-3 status, an applicant would have to: Maintain W-2 status for four years; Continue to submit reports to DHS every six months; Have been employed for at least 36 months during the course of having W-2 status or be pursuing (or have completed) a graduate degree; Submit to a new background check and report to a designated facility to have their biometrics (fingerprints and photo) taken; and Pay a fee of $2,000 (for renewal of W-3 status, a fee of $525 would be required).
2

Individuals with certain college degrees would be eligible to apply as long as they were younger than 32.

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W-3 status would be issued for an initial period of five years, and it would be renewable in four-year increments.

Would I be able to adjust my status if my employer sponsored me while I was in W-1 status?
No. You would not be able to change or adjust your status while you were in W-1 or W-2 status, even if your employer were willing to sponsor you for an employment-based immigrant visa or a family member were willing to petition on your behalf for a family-based immigrant visa. Under the ACHIEVE Act, you would be able to proceed from W-1 status only to W-2 status and then to W-3 status. Only after you were in W-3 status, ten years after you initially applied for W-1 status, would you be able to change your immigration status to something other than W.

Would I be eligible for federal financial aid, work-study, or federal student loans if I qualified for the ACHIEVE Act?
No. The ACHIEVE Act would explicitly deny individuals in W status access to federal student loans, work-study, or other federal financial aid programs.

Would I be eligible for in-state tuition?

Eligibility for in-state tuition depends on the laws in the state where you live or want to study. The ACHIEVE Act would not affect state rules about in-state tuition. By contrast, the DREAM Act would have allowed states more options for how to offer in-state tuition to students regardless of their immigration status.

Would I be able to travel while I was in W status?

Yes, but with two important sets of limitations: 1. You would not be allowed to take a single trip outside the U.S. that was longer than 90 days. And you would not be able to spend an aggregate of 180 days outside the U.S. during the six-year term of W-1 status, or an aggregate of 120 days outside the U.S. during the four-year term of W-2 status.

2. If you were not lawfully in the U.S. for six or more months after your eighteenth birthday, you would risk not being allowed back into the U.S. if you traveled abroad.

If I have been approved for DACA, does that mean that I would be eligible for W status under the ACHIEVE Act?
Not necessarily. While some DACA grantees would be eligible for W status under the ACHIEVE Act, a great number would not be. Under the ACHIEVE Act, only individuals who entered the U.S. at the age of 13 or younger would be eligible for W status. In contrast, the DACA policy applies to people who entered the U.S. before they turned 16. And while individuals with significant misdemeanors are not eligible for DACA, the ACHIEVE Act would make ineligible for W status nearly everyone with a nontraffic-related convictionincluding those with petty offenses for which

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they were punished only with fines or community service. Finally, most individuals who have been ordered deported, including many who were turned away at the border while they were children, would not qualify for W status under the ACHIEVE Act. In contrast, having a prior order of removal has no effect on a persons eligibility for DACA.

Would I be eligible to participate in the health insurance programs of the Affordable Care Act (health care reform) if I were in W status?
Although you would be in lawful status if you had W status, the ACHIEVE Act explicitly would make people in W status ineligible for the subsidies (in the form of tax credits) that make health insurance more affordable in the health insurance exchanges created by the Affordable Care Act. In addition, you would not be eligible for affordable health coverage under federal Medicaid (insurance for low-income individuals) or the Childrens Health Insurance Program (CHIP). You would also not be eligible for these federal safety-net programs: temporary cash assistance under Temporary Assistance for Needy Families (TANF), benefits for individuals with disabilities under the Supplemental Security Income (SSI) program, or food stamps under the Supplemental Nutrition Assistance Program (SNAP).

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DREAM, DACA, and ACHIEVE Compared

DREAM Act of 2010 (S. 952)
Age, initial entry Age, upper limit Access to higher education Eligibility for permanent residence Younger than 16. Younger than 36. Allows states more options for how to offer in-state tuition rates. Eligible after 6 years of conditional residence. Must graduate from a twoyear college (certain vocational colleges also qualify) or study for at least 2 years toward a bachelors or higher degree, or serve in the military for at least 2 years. Good moral character Not eligible if convicted of: One felony, or Three misdemeanors punished by total imprisonment of 90+ days.

Deferred Action for Childhood Arrivals (DACA)

Younger than 16. Younger than 31. No effect.

ACHIEVE Act
Younger than 14. Younger than 29.3 No effect.

None through the program. Can apply for lawful permanent residence if theres an independent basis, and eligibility, for permanent residence.

None through the program.4 Can apply for lawful permanent residence after at least 10 years in W status, if theres an independent basis for permanent residence.

Not eligible if convicted of: One felony, One significant misdemeanor, or Three misdemeanors.

Not eligible if convicted of: Any offense punishable by 30 days or more in prison, regardless of whether it was punished only with a fine or community service. Not eligible unless the removal order preceded the applicants 16th birthday or the applicant did not leave the U.S. after the order. No waivers available for inadmissibility grounds related to prior removal.

Effect of prior removal order

Not eligible unless the removal order preceded the applicants 16th birthday or the applicant did not leave the U.S. after the order. Waivers available for inadmissibility grounds related to prior removal.

No effect on eligibility.

Required by ACA to have health insurance 5 Eligible for ACA benefits that help defray the cost of health insurance Total surcharges paid before becoming a lawful permanent resident

Yes Yes

No No

Yes No

$0

At least $465 + $1,070 6 = $1,535

At least $3,275 + $1,070 6 = $4,345

Individuals with certain college degrees may apply as long as they are younger than 32. See note 1. 5 ACA stands for Affordable Care Act, the health care reform law. 6 Application fee of $985 + biometrics fee of $85 for adjustment of status application.
3 4

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