Some K-12 F-1s Have Likely Qualified for DACA, and Could Be Eligible for More

A curious glitch that just underscores how bad this zombie policy is, and how much worse it could get

By Andrew R. Arthur on September 2, 2020

In a Tuesday post, I analyzed a portion of a report issued by the ICE Student and Exchange Visitor Program (SEVP). It revealed that there were an astounding 78,366 foreign students studying in the United States on F-1 student visas at the kindergarten through grade 12 (K-12) level — more students than in all except the 37 largest of the nation's 13,598 school districts. At least some F-1 alumni would likely have been eligible for Deferred Action for Childhood Arrivals (DACA) — and many more may, at some point, be eligible that protection (or even more permanent status), too.

My colleagues and I have written extensively over the years about DACA. Briefly, though, it was (ostensibly) a broadly applied act of prosecutorial discretion that was created via memorandum issued by then-DHS Secretary Janet Napolitano on June 15, 2012. DACA was intended to "protect" aliens who were then physically present in the United States after entering before the age of 16, and who were under the age of 31 and in unlawful status on that date.

The idea behind DACA, to the degree that there was any explanation at all, was to ensure that "children" who knew no country except the United States could remain here indefinitely, instead of being returned to their "unfamiliar" countries of nationality or citizenship.

Of course, 30-year-olds are not children, and (even given my somewhat cossetted upbringing) I was plenty familiar with my home before I was 16, but nonetheless, DACA created its own constituency and supporters armed with tendentious talking points — likely the intention of Secretary Napolitano and her boss, President Obama, to begin with, in order to push a broader amnesty.

As my colleague Mark Krikorian has explained, "DACA Drags On", despite the Trump administration's efforts to end the program, thanks to a June 18, 2020, opinion from the Supreme Court that sent DHS back to the drawing board on DACA. It is a "zombie" policy, which seems to lope along despite its questionable grounding in the law (it is currently subject to challenge in federal court in Texas) and the many administrative attempts to stop it.

Oddly enough, there are aliens who would fall within the DACA guidelines who are still not yet eligible to apply for DACA. Aliens have to be 15 to apply, meaning that an alien born between September 2005 and June 14, 2012 could yet be waiting for the chance to obtain DACA — assuming they meet the program's other requirements. Most pertinently, they had to have been in the United States illegally on June 15, 2012, and be in school, have graduated from high school (if they are prodigies), or have obtained a general education development (GED) certificate in lieu of completing high school.

Honorably discharged members of the Armed Forces or the Coast Guard are also eligible to apply for DACA, even if they are not in school, have not graduated from high school, and have not earned a GED. Given that the minimum age to join the armed services is 17 (with parental consent), those would-be DACA recipients would not meet that requirement.

For the time being, DHS has placed a moratorium on new DACA applications, as I explained in a July post. Given the willingness of courts to meddle in the program, however, I would not expect that to last forever — at least in the short run — so it his highly likely that additional aliens will be granted DACA, at least for a while, in the future.

All of this leads to some interesting scenarios, including for aliens who entered as legal F-1 students at the K-12 level.

First, under the Supreme Court's 1982 decision in Plyler v. Doe, aliens illegally present in the United States cannot be denied the opportunity to attend public school through the 12th grade. As I will note in a later post, that does not mean until the student is an adult of 18, but so long as the student meets the age requirements to attend secondary school in the school district in question — which can be older than 18. They all would have been eligible for DACA, assuming they turned 15 before the DHS moratorium.

But DACA is not limited just to aliens who entered illegally, either. Instead, it applies to any alien who was in unlawful status on June 15, 2012. That means that a student could have entered as an F-1 student, and subsequently fallen out of that status but still be attending school, a high school graduate, a GED recipient, or honorably discharged from the U.S. Armed Services or Coast Guard.

As I have previously explained, an alien can enter the United States on an F-1 visa to attend a private school as early as kindergarten. There does not appear to be a minimum age at which a child can get an F-1 visa to attend kindergarten, but most kindergartens require a pupil to be an older four-year-old or a five-year-old (some kindergarteners start close to their sixth birthdays).

As a practical matter, the youngest that an alien could have entered the United States on an F-1 visa to attend kindergarten, and subsequently fallen out of that status on June 15, 2012, would have been at the end of the 2011-2012 school year, when they would have been between five and six (and therefore born in 2007 to 2008).

There are likely few such aliens, but that does not mean that there are none. A good kindergarten will put a child ahead of his or her peers before beginning public school, and under Plyler, that later first-grade public education would be free.

On the other end of the spectrum are F-1 pupils who would have fallen out of status just shy of their 16th birthdays, again, following the 2011-2012 school years. Aliens can enter on an F-1 to attend a private school at the K-12 level until graduation and to attend a public high school as an exchange student for one year. Of course, those secondary-school graduates can apply to college and thereafter post-graduate programs, as well.

For those not familiar with the American educational system, on his or her 16th birthday, an apt pupil would generally be in either the 10th or 11th grade (depending on the student's birthday and parental preferences). That would mean that a student aged 15 or below in June 2012 could have just finished grades 10 or 11 on a valid F-1 visa at any accredited school — public or private — and fallen out of status (by completing one year at a public school or dropping out of a private school) directly thereafter.

SEVP did not publish statistics detailing how many K-12 F-1 students there were in 2012 (those statistics begin in 2017). Ten days before the DACA memo was issued, however, DHS published a web page extolling the benefits to "international students" of attending high school in the United States — so there were plainly secondary students studying in the United States at the time.

That web page noted, again, that those international students could attend a public high school on an F-1 visa starting in the ninth grade — but, as stated above, could only do so for one year. Under Plyer, however, that erstwhile legal exchange student at a public school on an F-1 visa could simply enroll for public school again for the next school year — albeit in unlawful status.

And given the laxity in DHS's enforcement regime at the time, once that F-1 public high school student was in school in the United States, there really wasn't much to force him or her out (and they likely would have been foolish to have done so, thanks to DACA).

Note, though, that by regulation, F-1 students generally get 60 days after their studies are completed to leave the United States, meaning that unless the public school year ended exceptionally early, there would have been few F-1 exchange students who completed a year at a public school and were no longer in status on June 15, 2012.

But some of those exchange students who finished grades nine to 11 could have dropped out — and fallen out of F-1 status, during the school year. And they could make at least a facial argument that they never intended to leave at the end of the school year, and therefore immediately fell out of status.

Finally, there are all of the F-1 students who entered to attend a private K-12 school in the United States prior to their 16th birthdays, and dropped out before June 15, 2012, thereby falling out of legal status and becoming eligible for DACA.

According to the National Center for Education Statistics (NCES), in 2017, 5.4 percent of 16- to 24-year olds were not enrolled in school and did not have a high-school credential. In FY 2016-2017, NCES reports, 85 percent of public school students graduated with a regular diploma within four years of starting ninth grade, suggesting private schools have a higher graduation rate.

But prep-school dropouts are not unheard of, so there were likely some students who entered on F-1 visas to attend a private secondary school and then dropped out.

To summarize, there were almost definitely some aliens who entered as F-1 students to attend school at the K-12 level who fell out of status and became eligible for, and ultimately were granted, DACA. How many? No idea, because DHS does not publish statistics on DACA recipient by ground of removability. But should the current moratorium on new DACA applications be lifted, there likely will be more.

Not that it ends there. H.R. 6, the "American Dream and Promise Act of 2019", which was passed by the House of Representatives in June 2019, would grant conditional permanent resident status to any removable alien (with only limited exceptions) who entered the United States under the age of 18, has been physically present (in any status) for four years from the date of enactment, and who is in school or has obtained a high-school diploma or GED.

That conditional residence could be removed (again, with limited exceptions), if the alien attends college or technical school for two years, serves in the military for two years, or meets certain limited economic qualifications (all with a "hardship exception").

That bill is presently stalled in the Senate (where it will likely not be acted on in the current Congress), but it will likely be submitted again in the 117th Congress, where its chances of passage are good — assuming that Democrats capture the White House and Senate and hold the House of Representatives in the November general elections.

Again, many aliens who entered as F-1 students at the K-12 level and fell out of that status would be eligible for that new conditional permanent resident status (and ultimately citizenship) if H.R. 6 or a similar bill were to be enacted into law. That would indeed be an ironic fate for the "littlest F-1s".