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Deferred Action for Childhood Arrivals (DACA) – The Obama Plan to Fix the DREAM Act Problem

UPDATE as of May 15, 2018: Various judicial proceedings have followed the Administrations withdrawal of DACA in September of 2017. The current state of the law as of May is that renewal applications continue to be accepted for processing, but new DACA applications may not be filed. A court issued an order in April completely restoring the program as it existed before it was withdrawn, but also issued a stay for 90 days – until July 23, 2018 - to give the government a chance to respond. An earlier order only reinstating DACA but only with regard to renewal applications remains in place. Parole applications for travel remain suspended, and DACA recipients should not be travelling abroad even with facially valid parole documents.

Q: What is DACA?

A: This was the Obama administration’s plan to fix administratively what congress couldn’t seem to fix with a law and help at least some people who don’t have a way to stay legally without fear of removal or the ability to work legally because they were brought to the U.S. as children.

A little history: there had been a broad feeling for quite some time that – if it was impossible politically to get a complete fix done for our immigration system – the at least some solution could be found within the executive branch of government through a President issuing orders or guidance that would then be enforced or administered by the various government agencies. Both sides of the immigration debate have used this tactic, to further both immigration benefits and immigration enforcement.

Under the Obama administration, there was a belief that maybe we could at least get something done for those who aren’t really to blame for their situation. Specifically, we’re talking about people who aren’t legally in the U.S. because they were brought here without legal status as children: either those who crossed a border without inspection or who were properly admitted but with a status that expired at some point after they got here.

After all, it wasn’t really their own decision – if anyone was to blame, it was their parents. Plus, the U.S. is really the only home these people have ever known. So, can’t we at least help them?

Apparently not – at least not through actual lawmaking. For many years, the DREAM Act (which stands for “Development, Relief and Education for Alien Minors”) was introduced in congress, but even this could never get passed as law.

Finally, in the very last year of the Obama administration’s first term in office, an Executive Order was issued directing the use of an already-existing mechanism – “Deferred Action” – to help people in this situation stay here and work. Since this is the use of "Deferred Action" for people who "Arrived" as "Children," the program was named "Deferred Action for Childhood Arrivals" - "DACA."

Q: What does DACA actually do?

A: DACA gives someone who qualifies the ability to stay in the U.S. without fear of removal for a limited time, and during that time work legally. In some cases, it might give the ability to travel abroad and return.

Q: Tell us more about the ability to travel abroad/out of the U.S. – when would Deferred Action allow that and when wouldn’t it?

A: First of all, any travel BEFORE Deferred Action is granted – even after applied for but before approval – interrupts the “continuous residence” requirement and keep the person from being eligible. So, any travel out of the U.S. would need to wait for Deferred Action to be granted.

Next, even a grant of Deferred Action alone doesn’t allow travel – it just makes a person eligible to apply for a travel document called an Advance Parole which would permit travel (this has its own filing fee and took about 60-90 days for approval).

But many people – maybe even most – who have been in the U.S. without legal status for a long time are subject to “reentry bars” – after building up enough “unlawful presence” and then departing the U.S., they are subject to bars to returning: a three-year bar for leaving after 180 days of unlawful presence, or a ten-year bar for leaving after a full year of unlawful presence.

Even in light of relatively new case law which appears to say that leaving under a Parole is not a “Departure” for purposes of triggering the unlawful presence bars, in practice the law here is not yet clear – so for many people who have accrued enough “unlawful presence” time it will be inadvisable to leave even with a Parole document.

However, not all time spent in the U.S. out of status counts as “unlawful presence” time – including time spent by anyone under 18.

Q: What isn’t DACA?

A: This isn’t a complete solution; it isn’t permanent residence (a “green card”) or even a non-immigrant visa – it doesn’t grant a legal immigration status but rather just grants an official promise not to take any action to deport or remove a person for a specific period of time – two years.

While there is no specific expiration date on the program, it can be withdrawn or ended at any time; so it isn’t an absolute irrevocable solution that can’t be taken away if different elected officials take office.

It ISN’T a new law, since no new law has been passed by congress or been signed by the president – just an executive order from the president that an existing administrative technique should be used in certain specific circumstances. It ISN’T amnesty which permanently forgives any lapse in status.

Q: Why Deferred Action?

A: Because just about anything else would require an actual law, which congress has proven unwilling to pass. Deferred Action is simply an administrative fix which the president can implement by executive order (guidance/instruction within the executive branch of government).

Q: What are the requirements, and how does someone apply?

A: There are very specific requirements for the person applying – many of which are unclear enough to raise more questions:

  • The person was in the US and under the age of 31 on June 15, 2012 (born June 16, 1981 or later);
  • The person entered the US before their 16th birthday (doesn’t matter whether entered legally – with inspection/on a visa that expired by the June 15, 2012 date the program was announced, or entered without inspection/without a visa/by “sneaking in”);
  • The person has continuously resided in the US since June 15, 2007;
  • The person was physically present in the US on June 15, 2012 and at the time the application is submitted;
  • The person is in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S. on the date of application;
  • Has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The person applying submits a special form to the government called an I-821d - along with a separate form for the work authorization and fee of $465 (a $360 base fee and $85 for biometrics). Proof that the person meets all of the criteria also needs to be submitted.

Q: How does someone prove that they meet all of the criteria for Deferred Action for Childhood Admissions (DACA)?

A: The type of proof depends upon the criteria – and in some cases, the circumstances of the person applying.

Some are fairly simple. Age can be proven with a birth certificate. If the person entered legally, the original I-94 card given upon entry and passport stamp are all that is needed. A High School Diploma, GED Certificate, Military Service Record, or current course enrollment document would be sufficient to prove high school, GED or military service requirement compliance.

But, other requirements are more difficult. Physical presence requirements for certain time periods often require creativity to demonstrate – bank records, school records, medical records, etc. can all help. The biometrics may prove absence of any offenses but having committed a minor offense it may be tough to prove that there was no “significant misdemeanor.”

An attorney should be consulted to assist with the more difficult documentation requirements.

Q: If I just give the government everything they ask, will I definitely get Deferred Action? Can I appeal if I don’t?

A: There are never any guarantees with USCIS – and the process is purely discretionary. They can deny deferred action, and there isn’t any right to appeal. In some circumstances it may be possible to ask the agency to look at the case again, and nothing prevents applying again.

Bear in mind that by applying, a person is proving – in writing and with documentation – to a government agency that they are present in the U.S. and without legal status. So, there is always some risk of referral for removal proceedings. However, USCIS applies its own guidelines in doing this, and will generally only do this where a national security issue is present, where there is a finding of fraud (which is only one of the many reasons why it is so important to be truthful in all dealings with USCIS), or in certain instances where they are statutorily required to initiate removal proceedings.

Q: If I get deferred action, can I help husbands or wives, boyfriends or girlfriends, parents or brothers or sisters?

A: No. There is no “derivative” status that helps spouses or children and since this isn’t really a status at all it doesn’t give you the ability to apply for anyone else. It isn’t likely that applying for yourself – and disclosing where you live and that you are out of status – will get any other family members into trouble, though, unless there is fraud or a criminal history/outstanding warrants.





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The above is presented for informational purposes only and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.