|Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, the United States Secretary of Homeland Security announced that people who came to the United States as children may request “deferred action” for a period of two years, if they meet certain requirements. Pursuant to the directive from the Secretary for the Department of Homeland Security (“DHS”), a grant of “deferred action” allows these youth temporary permission to stay in the U.S. This deferred action program is referred to as Deferred Action for Childhood Arrivals (“DACA”).
An individual may request deferred action under DACA if he/she meets all the following requirements: 1. Was under the age of 31 as of June 15, 2012 (was born on or after June 16, 1981);
If a person is granted deferred action through DACA, this deferred action is valid for two years, and may be renewed for an additional two years. U.S. Citizenship and Immigration Services (“USCIS”) is currently accepting applications both from people who are submitting an initial application to DACA for the first time, and from people who are seeking to renew their previously granted DACA deferred action. A grant of deferred action through DACA is a form of administrative relief, whereby DHS authorizes and allows a person lacking legal U.S. immigration status to remain in the U.S. temporarily. Deferred action is a form of prosecutorial discretion whereby the relevant U.S. immigration agencies/departments delay or defer pursuing removal action against an individual for a certain period of time. An individual may apply for and obtain an employment authorization document (a “work permit card”) for the period during which DHS has granted him/her deferred action.
Deferred action DACA applications are granted on a case-by-case basis, and the adjudicator will look at the specific facts and equities in each individual case. Meeting the requirements necessary for DACA eligibility, does not guarantee that a person will be granted deferred action. DHS must still examine each individual applicant’s case, and decide if they will be granted deferred action. An experienced attorney should help ensure that your application is complete, that all requirements have been met, and that you should be granted deferred action as a matter of discretion.
2. Came to the United States before reaching his/her 16th birthday;
3. Has continuously resided in the United States since June 15, 2007, up to the present time;
4. Was physically present in the United States on June 15, 2012, and at the time of making his/her request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Is currently 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 United States; AND
7. Has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
Individuals requesting DACA must have been under the age of 31 as of June 15, 2012. However, the individual must also be at least 15 years or older to request DACA, unless he/she is currently in removal proceedings or has a final removal or voluntary departure order. Therefore, if you have never been in removal proceedings or your removal proceedings were terminated before submitting a DACA request: you must be at least 15 years old at the time of submitting your request and you must have been under the age of 31 as of June 15, 2012. However, if you are currently in removal proceedings, have a final removal order, or have a voluntary departure order, and you are not currently in immigration detention: you still have been under the age of 31 as of June 15, 2012, but you may be younger than 15 years old at the time you submit your DACA request. A summary of the basic timeframe requirements are as follows: 1) An individual submitting a DACA request must show that on June 15, 2012:
He/she was under the age of 31; was physically present in the United States; and had no lawful U.S. immigration status.
2) An individual submitting a DACA request must show that as of the date the DACA request is filed:
He/she has resided continuously in the U.S. since June 15, 2007; had come to the United States before his/her 16th birthday; was physically present in the United States on the date the application was filed; and is EITHER in school, has graduated from high school in the U.S., or has a GED; OR is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
On their official website, USCIS has posted examples of documents that can be used to demonstrate that the DACA guidelines have been met. However, these documents may be difficult to obtain, or may be insufficient proof for DACA approval. It may be necessary to get creative when finding ways to prove compliance with certain DACA requirements. It is best to work with an experienced attorney who can help you obtain the best documents for demonstrating that you meet the DACA guidelines.
If USCIS grants an individual deferred action through DACA in his/her case, the individual will receive a written notice of that decision. For those who requested employment authorization, an Employment Authorization Document will arrive separately in the mail. When considering the “continuous U.S. residence” requirement, certain instances of travel outside the U.S. may affect whether this guideline is met.
Travel outside of the U.S. on or after June 15, 2007, but before Aug. 15, 2012, will not affect the continuous residence requirement if the travel was brief, casual, and had innocent motives. However, travel outside of the U.S. on or after June 15, 2007, but before Aug. 15, 2012, will affect the continuous residence requirement if the travel was for an extended period of time; was because of an order of exclusion, deportation, or removal; or was undertaken to participate in criminal activity.
Travel outside of the U.S. after Aug. 15, 2012, and before DACA has been requested, will always affect compliance with the continuous presence requirement. An individual cannot travel until he/she receives an approved request for advance parole – permission to leave the U.S. – and such an individual cannot apply for advance parole unless and until DHS has determined whether to defer action in his/her case.
Travel outside of the U.S. after Aug. 15, 2012, and after DACA has been requested, will also always affect compliance with the continuous presence requirement. Again, an individual cannot travel until he/she receives an approved request for advance parole – permission to leave the U.S. – and such an individual cannot apply for advance parole unless and until DHS has determined whether to defer action in his/her case. Additionally, if an individual seeking DACA has previously had a deportation or removal order issued against him/her and that individual departs the U.S. without taking additional steps to address those removal proceedings, that departure will likely result in the individual being considered deported or removed. This will most likely result in potentially serious future immigration consequences.
Travel outside of the U.S. on or after Aug. 15, 2012, and after receiving a grant of deferred action through DACA, may affect compliance with the continuous presence requirement. If USCIS has approved a person’s request for DACA, that person may file Form I-131, “Application for Travel Document,” to request advance parole to travel outside of the United States. If that individual travels outside the United States without first receiving advance parole, USCIS will automatically terminate his/her DACA status. However, travel outside of the U.S. will not interrupt an individual’s continuous residence if that person has received approved advance parole.
Always speak with an immigration attorney before traveling if you think you are considering requesting deferred action through DACA.
Individuals should be aware that there are risks associated with requesting deferred action through DACA. For this reason, individuals should only apply for DACA after consulting with a qualified attorney. While this is not done in all cases, if an individual is here unlawfully and USCIS or U.S. Immigration and Customs Enforcement finds that he/she not meet the criteria for deferred action, the individual may be placed in removal proceedings after a DACA request is denied. Additionally, even if deferred action is granted in an individual’s case, DACA status is discretionary and it is possible that it can be revoked at any time in the future.
The federal government considers a person granted deferred action through DACA to be lawfully present in the U.S., for the period that the grant of deferred action is in effect. However, a grant of deferred action is a temporary status and does not provide a means to obtain permanent lawful permanent resident status or U.S. citizenship.
Make sure that you consult with an experienced and qualified attorney if you plan to apply for DACA, or think you may be eligible for DACA relief. Notarios and dishonest immigration agencies may promise you results without concern for your future or well-being. Often, these agencies are illegally practicing law and are not prohibited from assisting individuals with legal matters. The following warning is directly from the official USCIS website on DACA: “Don’t Be a Victim of Immigration Scams: Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money.”
Gavlin & Associates has been very successful in getting our clients’ DACA applications approved by working closely with the client through every step of the process, and making sure all DACA guidelines are met. If you would like to learn more about your eligibility for DACA, call our office to arrange a consultation with one of our experts.