The 24 Most Important Things to Know About Deferred Action for Childhood Arrivals (DACA) 2017-05-24T22:26:53+00:00

The 24 Most Important Things to Know About Deferred Action for Childhood Arrivals (DACA)

1) What is Deferred Action for Childhood Arrivals (DACA)?Deferred Action for Childhood Arrivals (DACA)

In 2012 by executive order, the Obama administration created DACA. A DACA petition allows certain illegal and undocumented people lawful presence in the United States, a work permit, and an exemption from deportation.

Under DACA, an individual obtains non-immigrant legal status. However, DACA does not grant lawful status nor is DACA a path towards citizenship.

Status under DACA is valid for 2-years, which can be extended so long as DACA is available.

2) Is There a Legal Basis for DACA?

DACA is based upon the prosecutorial discretion of the Department of Homeland Security.

Essentially, DACA is an acknowledgment by the Homeland Security that it would be impossible to investigate and prosecute every undocumented person in the country.

To this end, USCIS has decided that it will focus its enforcement budget to investigate and deport undocumented immigrants who pose a national security or public threat.

 

3) Is DACA for Real and Does Anyone Really Get Status?

As of 2014, USCIS has granted DACA status to approximately 581,000 people while denying DACA status to about 24,000.

However, despite over a half-a-million people gaining DACA status, another 1.7 million people may still be eligible for DACA protections.

 

4) What are the Benefits and Protections Provided by DACA?

The benefits of DACA are many. The two main benefits that most people focus upon are gaining work authorization in the United States and gaining an exemption from deportation. However, aside from these benefits another huge benefit of DACA is that individuals under DACA status are not considered to be unlawfully present in the United States during the period they are under DACA status.

What that means is that a person under DACA status is considered to be lawfully present in the United States while under DACA status. Therefore, for purposes of future inadmissibility based upon unlawful presence, a person under DACA status is not considered to be unlawfully present in the United States.

This benefit is massive because unlawful presence in the United States could result in an inadmissibility bar for up to 10 years. However, obtaining DACA status does not excuse or forgive any previous or subsequent periods of unlawful presence.

 

5) Am I eligible for DACA?

To be eligible for DACA a person must meet the following conditions. However, meeting these conditions does not guarantee that a person will be granted DACA status.


  • You are over the age of 15 at the time of filing a DACA application. (Exception: If you are currently in removal proceedings or have a final removal or voluntary departure order, you may file for DACA before turning 15).

  • You came to the United States before your 16th

  • You are currently living in the United States.

  • You have consistently resided the United States since June 15, 2007.

  • You did not have lawful status on June 15, 2012.

  • You are currently in school, have graduated with a high school degree or a G.E.D., or have been honorably discharged from the United States military.

  • You have not been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors, and you are not a threat to national security or public safety.

 

6) How Does Travel Effect a DACA Application?

A requirement of DACA is that the person seeking deferred action must have continually resided in the United States since June 15, 2007.

Travel outside of the United States before August 15, 2012 will not effect the DACA application if the travel was brief, casual, and innocent.

Travel outside the country but before filing a DACA application is forbidden and can effect the DACA application. Additionally, travel while the DACA application is pending will interrupt the continuous residency requirement. If you have an approved DACA you are allowed to travel after you file Form I-131.

The documentation that is required to prove continuous residency does not need to establish residency for every day and hour of your residency but it should establish continuous residency for at least every year of your residency in the United States.

 

7) Can I Apply for DACA Even if I Have Been Arrested?

It depends. The purpose of DACA is to prioritize the resources of the USCIS and to focus its resources on enforcement of unlawfully present individuals that pose a national security or public threat. Individuals who commit criminal acts certainly fall under the priority category for enforcement by the USCIS.

Factors that USCIS considers are gang membership, participation in criminal activities, or participation in activities that threaten the United States. However, not all criminal prosecutions will automatically disqualify you from receiving DACA.

 

8) What Prior Arrests or Convictions Will Disqualify DACA?

Any conviction for a felony offense regardless if the crime was prosecuted by federal, state, or local authorities will disqualify you from participating in DACA. A felony is any crime that is punishable by more than 1-year in prison.

 

9) What is a Significant Misdemeanor for the Purposes of DACA?

For the purposes of DACA, a significant misdemeanor is the same as a felony conviction; it will prevent you from receiving DACA protection.

A significant misdemeanor follows the definition of a misdemeanor under federal law. Under federal law a misdemeanor is any crime that is punishable by more than 5 days in jail but less than 1-year in jail. However, not all misdemeanors are considered a significant misdemeanor under DACA.

To qualify as a significant misdemeanor under DACA law, the misdemeanor must meet at least one of the two following categories:

  • Any offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence. Any of these categories of offenses will disqualify you from being granted DACA even if you were not sentenced to any jail time.

  • Any offense where you spent more than 90 days in jail.

It is important to note that the decision made by USCIS is made on an individualized basis and having a criminal background may not necessarily automatically deny your DACA application. In fact, the USCIS can deny the application for DACA status even if you do not have a criminal background. As such, it is imperative that you talk to an attorney as soon as possible when starting the DACA petition process.

 

10) Do Traffic Offenses Count Towards the 3 Non-Significant Misdemeanor Rule?

No, minor traffic offenses such as speeding will not count as a non-significant misdemeanor in your background. However, because USCIS looks at your background under a totality of the circumstances a significant number of arrests for minor offenses could cause your DACA application to be denied.

 

11) Do Immigration Offenses Count Against Me for DACA Purposes?

No, immigration offenses regardless if classified as a felony or a misdemeanor will not be considered by USCIS in evaluating your DACA application.

 

12) Will Expunged Cases or Juvenile Cases Effect My DACA Application?

Cases that you have successfully expunged or cases that were prosecuted in juvenile court will not automatically disqualify you from receiving DACA status.

 

13) Can I Apply for DACA Even If I’m in Removal Proceedings?

Yes. A person can apply for DACA even if they are in removal proceedings; have a final removal order; or even a voluntary departure order. DACA is available to anyone who meets the DACA guidelines listed above.

If you are in immigration custody and you qualify for DACA you may be released from custody on an alternative form of supervision while you pursue your DACA application.

 

14) What is the Process to File for DACA?

The application process for DACA is complex requiring the filing of several forms and the presentation of numerous pieces of evidence that establish your eligibility. Failure to comply with the instructions for DACA can result in the DACA application being denied.

Even filing the DACA application on an outdated form can result in USCIS denying your DACA application.

The application needs to be sent to the appropriate lockbox depending upon your location. Once USCIS receives the completed DACA application along with the filing fees, USCIS will forward you a notice to schedule a biometric examination at a local Application Support Center (ASC).

Failure to schedule the biometric examination or missing the scheduled appointment can result in the DACA application being denied.

 

15) What are the Forms Required for DACA?

I-821D – Consideration of Deferred Action for Childhood Arrivals

I-765 – Application for Employment Authorization

I-765WS- Worksheet for Employment Authorization

 

16) What Are the Type of Documents Required to Establish DACA Eligibility?

The following documents are acceptable to establish eligibility for DACA. The list is not comprehensive and other documents can be used.

Document Proof Acceptable documentation
Proof of Identity Passport from Country of Origin or School or Military Photo ID Card
Proof of Arrivals before Age of 16
Passport with admission stamp or Form I-94/I-95/I-94W
School records from the U.S. schools you have attended
Proof of immigration status Form I-94/I-95/I-94W with authorized stay expiration date
Final order of exclusion, deportation, or removal issued as of June 15, 2012
Proof of presence in U.S. on 6/15/2012 Rent receipts or utility bills
Employment records(pay stubs, W-2 Forms, etc)
 School or military record

 

17) What are the Fees for the DACA Petition?

The cost to file a DACA application is $465. The $465 fee applies to individuals who are filing an initial application or those who are seeking to renew their DACA status.

 

18) Are Fee Waivers Available for DACA?

The filing fee for a DACA petition is mandatory and must be paid at the time of filing. However, fee waivers are applicable in a limited number of cases. A fee waiver must be filed and accepted before filing the DACA application. Therefore, seeking a fee waiver will slow down the DACA process significantly. Fee waivers are generally available to individuals who are under 18 years of age that have finances that are below the federal poverty level and who do not have parental or familial support. Fee waivers are also available to individuals, regardless of age, who are unable to care for themselves because they suffer from a chronic disability. However, even these individuals need to establish that they have an income that is less than 150% of the federal poverty level. The current poverty level can be found here.

 

19) Can I Appeal a Denial of My DACA Petition?

No, because DACA falls under the discretionary authority of the USCIS the determinations it makes regarding your DACA application are not appealable and you are not allowed to file motion to reopen or reconsider.

 

20) Can Filing a DACA Application Cause My Family or Me to Be Deported?

Currently, the USCIS has a policy not to disclose information provided in a DACA application to Immigration and Customs Enforcement (ICE) or Customs and Border Patrol (CBP) for the purpose of starting a deportation or removal proceedings. The information that will not be disclosed applies to your personal information and the information of your family members.

The information provided in the DACA application maybe released if it meets the Notice to Appear guidance or it maybe shared with law enforcement agencies for purposes other than removal such as investigation or prosecution of a crime.

If your case qualifies to be referred to ICE or you receive a Notice to Appear, the information related your family members would not be forwarded to ICE. However, information about your family members can be released for national security purposes or the investigation or prosecution of a crime.

21) Will I Be Deported If My DACA Application Is Denied?

If USCIS denies your DACA application, you likely will find yourself in the same situation you were in before filing the DACA application. Unless your case involves a criminal offense, fraud, or you pose a threat to national security or public safety your case will not be referred to ICE for the initiation of removal proceedings.

22) What Happens if I Get Caught Lying on a DACA Application?

Knowingly making false or fraudulent claims on a DACA application or if you fail to knowingly disclose facts is a serious violation.

Lying on a DACA application will almost certainly result in the application being denied and USCIS beginning deportation or removal proceedings. Additionally, lying on a DACA application will subject you to criminal penalties.

23) When Should a DACA Renewal Be Filed?

A DACA renewal should be filed more than 120 days before your current DACA expires to ensure a decision by USCIS before your current DACA status expires.

Although USCIS accepts extension requests that are filed 150 days before the DACA period expires, filing this early is not advised because early extensions could cause an overlap in your DACA status resulting in a renewal that is less than 2-years.

24) How Do I Get Started With the DACA Process?

Because DACA was created by executive order and because it falls under the prosecutorial discretion of the USCIS, DACA can be discontinued at any time. As a result, starting the DACA application should be done as soon as possible.

Once you contact our office we will have an initial consultation to make a preliminary determination as to whether you qualify for DACA. If you qualify for DACA, then we will schedule a consultation where will begin the process of gathering the required information and we will provide you a checklist for the documents we will require.

If needed, we will help you gather the necessary documents as well. Once the application is complete we will ensure that it is filed correctly and to the correct location. And of course we will answer all your questions and address all your concerns. Contact the immigration attorneys at Jaleel Law P.C. to discuss how we can help.