There is virtually no chance the DREAM Act will become law in the current Congress. The bill, which would provide conditional US residency to undocumented high school graduates who are pursuing either a college degree or a military career, died in the last Congress—before Republicans took control of more seats in both chambers. The new Republican House of Representatives would sooner pass a bill rescinding citizenship to children of undocumented immigrants, rather than extending it to anyone.

But the Obama administration is doing what it can to implement the DREAM Act through the back door by refusing to deport many undocumented students. It’s not nearly as effective as the comprehensive DREAM Act legislation—but it does keep talented immigrants in the country, and resembles several similar efforts in a dozen different states.

At a Senate hearing on the DREAM Act yesterday, Secretary of Homeland Security Janet Napolitano explained the rationale behind a recent memo written by Immigration and Custom Enforcement director John Morton, which outlines situations where “discretion” could be used to prevent certain immigrants from being deported, including students. It specifically allows agents and attorneys to consider if a person graduated from high school or is enrolled in a higher education program.

“We simply don’t receive the appropriation necessary to remove everyone who is technically removable from the United States. And so we have to set priorities,” Napolitano said. “One of the things we’re working on now, is to design a process that would allow us as early as possible, to identify people who are caught up in the removal system, who in the end really don’t fit our priorities or in the end, would not be removable.”

As Suzy Khimm notes at Mother Jones, the discretion outlined in the Morton memo goes much further than earlier efforts at discretion during the Clinton administration. “It’s a paradigm shift…it’s the first memo I’ve seen by an ICE director written in plain English so that a field officer and trial attorney can understand it,” David Leopold, an immigration attorney and president of the American Immigration Lawyers Association, told Khimm. “What he’s really saying is, look at the people you run across in the scope of your enforcement work as human beings, not merely as statistics and targets—have they developed ties, have they added to the social fabric and culture, do they have children that depend on them? I applaud him for that.”

Sen. John Cornyn underscored Republican opposition to the DREAM Act and similar executive actions under the Morton memo, asking Napolitano why DHS doesn’t just ask for the necessary appropriations to deport every undocumented person in the United States. Republicans like the Kansas secretary of state have similarly bashed the Morton memo as “the stealth DREAM Act,” but there’s little that Republicans can actually do to stop ICE from exercising such discretion.

Moreover, the Morton memo compliments many similar actions by states to keep talented, undocumented individuals as residents. On Friday, a law will take effect in Maryland that halves tuition rates for undocumented immigrants, and hundreds of undocumented students are expected to apply.

Republicans in Maryland are mounting a furious petition drive to delay or possibly repeal the law before it takes effect, and it appears they might be successful. If the petition signatures are valid, the law will be put up for a referendum later in the year.

But even if the law is delayed in Maryland, eleven other states have similar laws. California allows undocumented students to pay in-state tuition, and a legal challenge to that law was rejected by the Supreme Court earlier this month. Ten other states have similar policies: Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington and Wisconsin.

These piecemeal efforts will have to do for now, and probably for the next several years–there are twenty-one Democratic Senate seats up for grabs in 2012, compared with only ten Republican seats. The passage of the DREAM Act in the current political climate is just that—a dream.

Additional reporting by Zachary Newkirk