On June 15, 2012, President Obama announced the implementation of Deferred Action for Childhood Arrivals (DACA), a plan to help undocumented youth. Through DACA, young people ask the US Immigration Service to exercise prosecutorial discretion to let them stay for two years at a time. DACA can also come with a 2 year work card and a Social Security number.  It is not a new law, or even a regulation. It is not a long-term solution, nor does it grant a legal status. But, it is a very exciting step forward.

Official USCIS information and forms are available for free at www.uscis.gov.

The program is generous about education requirements and previous immigration violations, but discretionary about previous criminal activity.  We expect large numbers of people to be signing up, and we encourage you all to read this FAQ before seeking legal advice to make your visit to a clinic or lawyer more efficient.


There is a very good FAQ on the ICE website, available here, and on the USCIS website at http://www.uscis.gov/USCIS/files/form/i-821d.pdf.

Here are some answers to the most common questions we are receiving:

 

What is Deferred Action (DACA)?

This was a surprising and interesting move by President Obama.  For years, Deferred Action was a little used idea - offering a temporary opportunity to stay in the US for some kind of extreme humanitarian reason. There was no form or formal procedure.  It was just a request directly to the local USCIS District Director. Now that discretionary remedy is being expanded and formalized into one of the largest immigration programs around.This is not a status, or a visa, but a kind of limbo. It is a decision by the Department of Homeland Security (DHS) not to try to remove (deport) someone who has no legal right to stay.


DHS stated that "economic necessity" is required to receive a work card through Deferred Action. One of the three forms involved in the DACA application is an I-765 WS worksheet, which is used to determine whether or not there is economic necessity. We expect, but can not be sure, that DHS will find most 15-30 year olds who cannot work and have no assets can show economic necessity. 

Who qualifies for DACA?

Unauthorized individuals that meet the following criteria should be eligible to apply for Deferred Action. 

 

Age
  • You must be 15-30 years old to apply.
  • Under 31 years old as of June 15, 2012 (the date of the President's announcement)
  • You must have arrived in the U.S. before you turned 16.

In addition, youth under 15 years old can qualify if they are in removal proceedings, have a voluntary departure order, or have been removed and are not currently in detention.

Continuous Presence
  • In order to apply, you must be continuously present in the U.S. for a minimum of 5 years, since June 15, 2007.
  • You must have been present in the U.S. on June 15, 2012.

If you have traveled during the past five years, the travel must have been "brief, casual and innocent" to avoid interrupting your continuous presence.This standard is used in other parts of immigration law so there is some reasonable guidance on this. "Brief, casual, and innocent" means that you were not looking to move to another country on a long-term basis.

Deferred Action will not be granted to individuals who leave and re-enter the country after August 15, 2012.

Education or military service

At least one of the following must be true in order for you to apply:

  • You are currently in high school. This includes vocational programs, or any school that is "designed to lead to placements in a job or further education." If the school is not publicly funded, then DHS will look at the "demonstrated effectiveness of the program." These educational requirements are generous but clearly do not include schools set up to help DREAMers qualify for DACA.
  • You have earned a GED or high school diploma.
  • You have been honorably discharged from the U.S. armed forces.

You do not need to have earned your GED by or been in school on the June 15 announcement date. Even if you are not currently pursuing your education, you can earn your GED now and apply in the future, or go back to school and then apply.

The USCIS FAQ from 8/14/12 has excellent information regarding the education requirement.

Clear criminal record (a criminal background check will be required)

Any one of the following will make you ineligible for Deferred Action:

  • felony
  • significant misdemeanor
  • three or more misdemeanors of any kind

If you are considered a threat to national security or public safety, you are not eligible and are at increased risk for removal.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Will I qualify for benefits like health insurance, in-state tuition, and a driver's license?

In many cases, lack of a social security number is the major obstacle in gaining various benefits. If you receive DACA and work authorization, then you become eligible for a social security number. Beyond this, benefits will vary from state to state. The Federal Real ID Act lists Deferred Action as a category eligible for a license, but states can impose additional requirements. Several states - including Florida, Arizona, and Texas, are blocking DACA recipients from obtaining drivers' licenses. Others - like California and Connecticut - are granting them.

We are not sure if you will be able to get a license to be a professional, such as a teacher or social worker - that may vary state by state. In-state tuition eligibility will also vary state by state. See www.nilc.org/basic-facts-instate.html.

Unfortunately, DACA recipients will NOT receive the benefits introduced by President Obama's Affordable Care Act. This means that DACA recipients will not have the same access to low-cost federal health plans, including Medicaid, as other deferred action recipients do. If you would like to read more about the options that DACA recipients have for health coverage, refer to this fact sheet from the NILC.

 

Do all Dream Act eligible students qualify for DACA?

No. The criteria are somewhat different. If you have a serious issue in your immigration history, such as removal or multiple re-entries, you may still be eligible, but you should discuss your situation with an attorney before applying – Deferred Action is discretionary, and the US government may choose not to exercise its discretion for someone with serious immigration issues. Also, if Deferred Action is not extended in the future, then someone with serious immigration issues would be a greater risk.

The website WeOwnTheDream.org developed an app to help you assess DACA eligibility, you can download the PocketDACA app here and watch a video on how to use it here.

 

Does DACA make it easier to gain permanent residency or citizenship?

No. Unless the DREAM Act passes, you will have to keep looking for a path to longer-term status. We have assembled a guide to long-term immigration remedies, available here. 

 

Will everyone who qualifies get DACA?  

We are not sure. The President has authorized this program, but we will have to see how long it takes, how many people are actually granted. DACA is discretionary. We are optimistic that the easy cases (those with no criminal or immigration court issues, and who can document their eligibility clearly) will be approved in 2012 or early 2013. Beyond that, USCIS has discretion to deny cases for public safety, national security, or fraud reasons.

 

How likely is it that the policy will get overturned? If it does get overturned, what is the danger?

The policy could be changed by Congress passing a new law that is more restrictive. Our sense is that it would be hard politically. Here is an article that discusses further reasons why you should take action now if you are clearly eligible.

Keep in mind, as we mentioned elsewhere, that anyone with a criminal or immigration court issue should consult with an attorney or legal service agency before applying for Deferred Action. Those people might not get the discretionary grant of DACA, and could be at risk if the ban on removing Dreamers is lifted by a new president.

 

I might have another option for immigration relief. Should I still apply for DACA?

There are three basic groups of Dreamers:

  • Those who do not qualify under the new policy should continue to look for other immigration opportunities to move into legal status, and also continue to advocate for a full DREAM Act.

  • Those who do qualify under the new policy but have another long-term option for permanent residence may still be able to apply for Deferred Action, but should definitely continue to pursue the longer term remedy. You can apply if you have an application pending for another kind of immigration remedy, but not if you have a legal status. A guide to longer-term remedies is available here.

  • Those who qualify under the new policy and do not have other short term options should consider applying for Deferred Action and a work card.

Note again that if you have a criminal issue, or have been referred to immigration court or removed from the US, or have left the United States and entered again, you should seek legal counsel before applying for DACA.

 

Should I hire an attorney to process DACA?

There is no rule that says you must have an attorney. We do strongly recommend that you rely on a reputable attorney or legal service agency to evaluate your case, and assist you. There are an estimated 800,000+ people who may be eligible, and this will probably be a high volume operation (as we have seen before with other programs like Temporary Protected Status), so working with a legal service organization near you that is set up to offer efficient free advice may be a good option. You can read more about this topic on the AILA leadership blog, as well as on the USCIS website.


Note that many Dream Act groups of young people themselves, with the help of attorneys, have created some useful self-assessment tools. These can be useful before seeing an attorney or legal service provider to help clarify issues and save time. Legal service agencies will be doing a "volume business" over the next several months. You can help find low and no cost legal aid at the following websites:

If I am still deciding about whether to apply, what can I do now to get ready?

For now, you can start to gather any proof you can, within reason, that you have:

  1. lived in the US 5 years

  2. were in the US on June 15, 2012, and

  3. came to the US before age 16.

This can be anything - credit card receipts, bills, doctor or school records, etc. You can be creative.There is no magic formula for providing evidence, even letters signed and notarized by family, friends, or anyone that has known you for 5 years or longer are better than nothing. More details are in the FAQ linked above. If you cannot document a particular date, then try to get evidence before and after that. The Immigration Service will be concerned that people who have been here 4.5 years will say they were here 5 to try to qualify, or that people may try to enter the US after June 15 and apply for Deferred Action – that is the reason for these requirements. So, for now, do your best to come up with any documentation that you qualify.

We have put together a chart with suggestions, available here.

 

When can I apply? How do I do it?

DHS started accepting applications for DACA on August 15, 2012.  The forms are on the USCIS website.

There are three forms to send - Form I-821D, Consideration of Deferred Action for Childhood Arrival, Form I-765 to request a work card, and Form I-765-WS to demonstrate economic necessity for the work card. The total fee will be $465. Applications are sent to a central lockbox address, and then forwarded to one of the four USCIS Service Centers for processing (Texas, Nebraska, Vermont or California).

After USCIS receives the application and reviews it generally for completeness, a receipt notice will be issued, with a case number that can be tracked online at www.uscis.gov. About a month later, the applicant will be sent a notice to appear for fingerprinting (biometrics) at a USCIS office nearby. Each application will be reviewed for fraud, public safety issues, and evidence. If additional evidence is needed, or there are questions to answer, USCIS will either send a written Request for Evidence (RFE) by mail, or schedule an interview.  Final decisions will be in writing. We expect this whole process will take at least a couple of months.

If the program is still in place when your DACA status is ending (two years later), you can renew by showing that you have made "substantial, measurable" progress in your educational goals.

You can not apply for a fee waiver, but there are some very limited exemptions. There are fee exemptions for those under 18, homeless, in foster care, lacking parental support, with income less than 150% of federal poverty guidelines, who cannot care for themselves because of chronic disability, or who have accumulated very serious medical-related debt. There will be a separate fee exemption form, which must be approved before a Deferred Action request can be filed without a fee. It is hard to know how long it will take to review fee exemption requests, so if you pay the fee, you will be closer to the front of what could be a very long line.

 

What does it mean to have "entered without inspection" (EWI)?

It is very important to understand the way you came into the United States. Some situations are simple - if you came across the border and never interacted with a U.S. border agent, then you are EWI. If you entered through an immigration checkpoint or airport on a temporary visa (such a tourist visa or student visa) and then overstayed, you are not EWI.

 It is common for DREAMers to have more complicated situations. What if you came across the border with fake papers, but were actually "inspected" by a U.S. immigration official? This could include using someone else's passport. Or what if you were a young child and asked to pretend you were sleeping in the back of a car - you may not know what was said about your status.
 
Because there are so many fact patterns, we strongly recommend getting as much information as you can from family, those who were there with you, previous attorneys, and/or Freedom of Information Act requests. We have met with many DREAMers who self-reported EWI who were not, and vice versa. Here are the three issues to think about:
  1. How does this affect a DACA application? Any of the above entries may qualify for DACA; the form gives a choice of "no lawful status" for manner of entry, which may apply. Consult a legal service organization to review the details of your situation. DACA does not ask for many details on the manner of entry.
  2. For future immigration applications, such as a green card through marriage to a U.S. citizen, those entries may count as entering with inspection. In case you hear different stories about this, there was a federal court case a few years ago where the judges said that an inspection that was based on false papers does not count. But that decision was vacated, and for now, entering with false papers can count as an admission.  For more details on this, see http://www.legalactioncenter.org/litigation/adjustment-status-when-admission-involved-fraud-or-misrepresentation
  3. Could whatever happened at the border be considered fraud or misrepresentation? If so, it could be an issue for DACA eligibility. It could also be considered a crime under federal law (such as a false claim to US citizenship if you used a US passport or birth certificate) or under state law (identity theft if you used someone else's documents). There still may be ways to file for DACA, and waivers available during the green card process. If you were quite young, it is unlikely that the Immigration Service would hold you responsible for presenting a false document. But if you were older, it is possible. Also, there may be questions about who gave you the false documents, and potential liability for them. If your parents gave you a false document to show, that could lead to charges or immigration action against your parents.
This is all a very complicated area of law, and requires a good, authorized legal service provider to help you work through this. Be careful not to assume that an entry was EWI or not EWI without investigating, no matter what you were told before. These are situations that immigration attorneys face regularly, so do not hesitate to ask for help figuring out what happened and what it means for you.

 

 

Will DACA let me travel internationally?

International travel may be permitted if you are granted Deferred Action, and also apply for and receive an Advance Parole (AP) travel document.

DHS stated that it will only grant Advance Parole for "humanitarian, education or work purposes." There are suggestions for the type of evidence that should be submitted with AP applications:

Educational Purposes a. A letter from a school employee acting in an official capacity describing the purpose of the travel and explaining why travel is required or beneficial; or,

b. A document showing enrollment in an educational program requiring travel.

Employment Purposes a. A letter from your employer or a conference host describing the need for the travel.
Humanitarian Purposes a. A letter from your physician explaining the nature of your medical condition, the specific medical treatment to be sought outside of the United States, and a brief explanation why travel outside the U.S. is medically necessary; or,

b. Documentation of a family member’s serious illness or death.

 

 

 

 

 

 

 

 

 

 

 

The AP documents are limited just to the time you ask for. So if your program ends on a certain date, ask for a few more days to allow yourself to travel and be safe if there is a cancelled flight, etc.  Since the processing times vary, we recommend not committing to international travel until you have the AP in hand. We realize that may be difficult but many schools will understand that you can cannot give a nonrefundable payment until you are sure you can go.

Many nonprofit agencies such as those at immigrationlawhelp.org can assist with this, or you can get the I-131 form at uscis.gov (click on the Forms tab). If you have any kind of criminal issue, or a previous immigration court file, you should talk to an attorney before you travel.

There is a slim chance that Congress might pass immigration reform this year, and that it would only apply to people in the US on the date the law is passed. That is a small risk, but one you should be aware of. 

Essentially, it is fine to apply for AP if you might be interested, and then if you get it, contact an attorney and talk about whether it is wise to travel at that point based on immigration history, reason for travel, and developments in Congress. To learn more, see this free-to-download webinar called "DACA and Advanced Parole," available on the CLINIC website. 

 

I have some minor offenses on my criminal record. Am I disqualified?

A felony, a significant misdemeanor, or multiple misdemeanors will disqualify you for deferred action.

  • A felony is any local, state, or federal offense that is punishable by a prison term of more than one year. Even if the state law calls the crime a "misdemeanor," if it carries a prison term of more than one year, it is a felony for this purpose.
  • Significant misdemeanor includes any crime of domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a fire arm, drug distribution or trafficking, DUIs (regardless of time served) and any other misdemeanor where more than 90 days in prison was the penalty.  A suspended sentence is not included. USCIS has guidance here.
  • Multiple misdemeanors means three or more of any type of misdemeanor.

Note that the term "significant misdemeanor" is not an immigration term, and will have to be defined.  It may be similar to a "crime of moral turpitude."  Whole articles have been written about that - and it is a very complicated area of law that depends on the type of offense, and how the law is written. 

Minor traffic offenses should not be a problem. State-specific immigration offenses will generally not be counted, nor will any crime punishable by less than 5 days of imprisonment. The guidance does not include simple assaults, drug possession and various other minor crimes as "significant misdemeanors."  But this is a discretionary program, and DHS still may determine that certain actions make a student a threat to public safety, and deny the application. 

DHS is taking DUI convictions seriously. DUI convictions disqualify you from DACA. Juvenile offenses and expunged records will be reviewed on a case-by-case basis. If you have EVER been arrested, charged or convicted of a crime, the first step is to get a certified copy of the court docket to prove what happened, and also a copy of the section of the law from the year this happened.  A local law library, or sites such as http://www.law.cornell.edu/ can be helpful. You could also request a background check (this process varies by state).

For immigration purposes, a plea of any kind can be considered a conviction. It may not matter that your charge was dismissed, convicted without a finding, or even expunged completely from your record. Immigration can still consider all of these things to be a "conviction," even if the state you live in does not. If you are in criminal proceedings, be wary of accepting any plea agreements before consulting with an attorney.

Anyone who has been arrested should get legal advice before applying for Deferred Action.

These recommendations are also summarized by the National Immigration Project here.

 

I am in removal proceedings, but I think I qualify for DACA. What do I do?

On June 18, ICE Director Morton announced that the agency is reviewing the entire EOIR court docket. They will administratively close all court proceedings for those that appear eligible for Deferred Action. Once their court case is closed, Dreamers should then follow any upcoming guidance about how to affirmatively apply for Deferred Action through USCIS.

 

I received a final order of removal, but I think I am eligible for DACA. Do I still need to leave?

Dreamers who have a final order of removal can apply for DACA. They should consult with an attorney before applying.

 

If I am granted DACA, will my family members get it too?

No. Each family member must qualify for Deferred Action individually. Parents or dependents can not get Deferred Action through a family member.

 

If I request DACA, and it is denied, will I get deported?

USCIS announced that there will NOT be an appeal process for DACA. Once it is denied, it can not be overturned.

In the case of a denied application, the applicant will only be placed in removal proceedings if there is a factor that heightens the priority for removal, such as a serious criminal issue. This includes fraud: if an applicant willfully misrepresented him or herself in an attempt to get DACA, he or she could be placed into removal proceedings. USCIS outlines their removal priorities here, but these priorities could shift if a different administration is elected.

If you have submitted insufficient evidence:

  • You will receive a Request For Evidence (RFE) and will be given 33 days to respond

If agency intends to deny:

  • A supervisor will first review the case if the issue is (1) criminal history; (2) inability to prove presence; or (3) inability to demonstrate that requester is ‘in school’. If USCIS decides to proceed with the denial, the agency will issue a Notice of Intent to Deny (NOID) and give you 33 days to respond

A related question is whether the information in your Deferred Action application will be kept confidential. According to USCIS now, information from the applications will not be shared with ICE or CBP - the other immigration-related branches of the Department of Homeland Security UNLESS you are considered a threat to national security, committed fraud in your application, or have been convicted of a criminal offense. But, it seems that the information in your application may be seen by other federal agencies for purposes other than deportation. USCIS wants requesters to understand that providing false information on the forms I-821D, I-765, and I-765WS, or the submission of fraudulent documents to prove any of the requirements (for example, providing a fake diploma to show graduation from a U.S. high school), will result in a denial and USCIS will go after you.

 

Are family members/relatives who are undocumented and ineligible in any danger?

From everything we have read, and our experience with other large programs such as TPS, we do not believe that family members are at a greater risk if one of them applies for DACA as a Dreamer. 

On the August 14, 2012, USCIS Stakeholder call, Director Mayorkas explained that if a DACA application is denied, and the case is referred for enforcement or immigration court proceedings, USCIS will not share family or guardianship information from the DACA application for the purpose of trying to deport (remove) the other family members.  But, that information can still be shared with other branches of government to investigate fraud or for public safety concerns.  We expect that legal service providers helping with DACA applications will discuss the situation of undocumented family members with the DREAMer before the DACA application is filed.

 

What happens if I encounter a CBP or ICE officer?

If you encounter an immigration officer before your DACA application is approved, you can expect to be briefly investigated and detained. CBP has said that anyone picked up will be interviewed and background checked, and that this process should take less than a day. If you appear eligible for Deferred Action, you will be released, but you still must finish the application process.

 

Should I ask for a work card even if I am not planning to work?

YES.  The Deferred Action request approval will be a sheet of paper, but the work card is a U.S. government issued photo ID, which is very good to have.  Also, the work card will allow you to apply for a Social Security number, and depending on the state you are in may allow you to get a driver's license. Lastly, the work card is part of the DACA application fee, so it does not cost anything.

 

I am under 18 years old. Is there anything special I should be thinking about?

Yes.  It is particularly important for you to consider applying for DACA.  The 3 and 10 year bars, and unlawful presence (all complicated legal penalties based on a 1996 law) can possibly be avoided if you are under 18 when you apply for DACA.  There is no unlawful presence counted for the time you are under 18 or for the time you spend with DACA.

 

I have a fake Social Security Number; do I need to disclose this on the I-821D or the I-765, and will this have a negative impact on my application?

You do not have a real SSN so you can write "none" on the I-765 form. By contrast, you should leave that box blank on the I-821D. If your application for work authorization is approved, you can apply for a real SSN. When you have a real SSN, you can talk to an accountant about possibly getting the money you paid into the Social Security system transferred to your new legitimate number.

 

I am concerned that I will not be able to show sufficient economic need for the I-765WS.

We expect USCIS will be pretty lenient when assessing an applicant's economic need, but it is very hard to say. We suggest that you list anything that makes your economic picture harder in the space provided on the I-765WS - debts from school, helping support family members, medical bills, inability to work in your field, etc. Keep it short and simple.

 

My DACA renewal has been delayed. What steps should I take?

NILC and ILRC created a document on steps to take if a person’s DACA renewal is delayed. Click here for the document (link will download a PDF): Steps to take if your DACA Renewal has been delayed.

 

 

 

While DACA came out of the blue for the DREAMer community, it is a variation on a theme for immigration lawyers.  

Taking a look at an old TPS manual from the Immigration Legal Resource Center shows that many of the same considerations and uncertainties applied 20 years ago:

Benefits of obtaining TPS, as listed in INA § 244, include protection against deportation and detention, employment authorization; and ability to travel abroad with DHS permission (advance parole). In addition, time spent as a TPS grantee does not count as unlawful presence for three- and ten-year bar purposes.           

Risks stem from the fact that, by definition, TPS is an impermanent status.  A country’s TPS designation may expire in a few years.  Once the TPS period expires, DHS might place a former TPS grantee in removal proceedings.  At present, we do not know the magnitude of this risk. 

As discussed in § 1.3, a TPS grantee must register his/her address annually with DHS.  An important question is what DHS does after the TPS period ends.  Might the DHS send the person a NTA (Notice To Appear)?  If the person has moved after TPS expires but before DHS issues a NTA, may DHS base in absentia hearings on that notice, given that the person had no ongoing obligation to keep DHS apprised of his/her address?

In light of these uncertainties, potential TPS applicants must be carefully counseled about the risks and benefits of applying.  It is worth exploring whether a potential applicant may regularize status through alternate routes before his/her country’s TPS designation expires.  For example, an applicant may have a potential asylum claim, or may soon be eligible to immigrate through a family visa petition.

 

Where can I find more information?

We recommend that you start with the ICE memo available here and the USCIS memo here. Additionally, please see:

http://www.uscis.gov/childhoodarrivals

Department of Homeland Security Memo