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C H A P T E R

Deferred Action for


Childhood Arrivals (DACA)
A. Do You Qualify for DACA?............................................................................................. 604
B. Who Is Not Eligible for DACA....................................................................................... 605
C. Risks and Downsides to Applying for DACA....................................................... 607
1. DACA Offers No Long-Term Benefits....................................................................607
2. DACA Requires Sharing Personal Information
That Could Later Lead to Deportation.................................................................607
3. DACAs Travel Possibilities Create Risks of Being Stopped
Upon Return to the U.S................................................................................................607
4. DACA Benefits Vary State by State.........................................................................608
D. Who Shouldnt Apply for DACA ................................................................................ 608
1. Dont Apply If You Have an Incident of Fraud in Your Past......................608
2. Dont Apply If You Have Committed
Serious Immigration Offenses...................................................................................608
3. Dont Apply If You Have a Criminal Record.......................................................608
4. Dont Apply If You May Be Viewed as a Public Safety
or National Security Threat.........................................................................................609
E. How to Apply for DACA ................................................................................................. 609
1. DACA Application Forms............................................................................................609
2. Preparing Documents in Support of DACA Application............................ 610
3. Renewing Your DACA Status......................................................................................611

26

604|U.S. IMMIGRATION MADE EASY

he Obama administration, via


executive orders issued in 2012
and 2014, created a new remedy for young immigrants who have no
legal status. Called Deferred Action for
Childhood Arrivals or DACA, it allows
noncitizens who were brought to the U.S.
as children and who meet other legal
requirements (described below) to apply
for three years protection from deportation (removal), as well as a work permit.
Another benefit is that a DACA recipient
stops accruing unlawful presence (relevant if you might ever apply for a visa or
green card, as described in Chapter 4).
Its important to note what the DACA
remedy is not. It does not confer amnesty,
a green card, or U.S. citizenship. It simply
means that U.S. immigration authorities
are expected to exercise their discretion and
decline to deport an otherwise removable
person who meets the legal criteria.
Family members of the applicant
cannot claim a work permit or any other
derivative rights to deferred action status.
As with any new government policy, the
road to implementation has been bumpy.
Although DACA can be renewed after its
expiration (and renewal applications were
already being accepted when this book
went to print), it provides no protection
against the possibility that a later
administration or Congress will change or
override the policy. Such a change could
leave former applicantsespecially those

whose applications were deniedwith a


clear record of unlawful U.S. presence,
which would pose a problem for their
future green card eligibility.
Also, because Obamas 2014 executive
order changed some of the eligibility
requirements, there may be confusion
during the transition, and new applications
will not be accepted until early 2015.

A. Do You Qualify for DACA?


Starting in Spring of 2015, you may apply
for DACA if you:
had not yet turned age 16 when you
came to the U.S. to live
have continuously lived (resided)
in the U.S. since January 1, 2010
up to the time of your application
(excluding any brief, casual, and
innocent departures from the U.S.)
were unlawfully present in the U.S.
on November 20, 2014
are either in school now (unless absent
for emergency reasons), have graduated
or earned a certificate of completion
from an accredited high school,
have obtained a general education
development (GED) certificate, or
are an honorably discharged veteran
of the Coast Guard or Armed Forces
of the U.S., and
have not been convicted of a felony,
significant misdemeanor, or three or
more other misdemeanors; and do

CHAPTER 26|DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)|605

not otherwise present a threat to U.S.


national security or public safety (such
as by being a member of a gang).
You will, when it comes time to apply,
need to supply proof of each item on the
above list.
TIP
You probably havent missed
the deadline. As of the time this book went
to print, there was no set deadline to apply for
DACA, nor any known end date to the program.
Applications will be accepted on a rolling basis
for as long as the program remains in existence
(which its likely to do at least through the
conclusion of the Obama administration, or until
Congress passes comprehensive immigration
reform and hopefully replaces DACA with an
actual long-term legal program).

B. Who Is Not Eligible for DACA


Eligibility depends on meeting each
and every criterion listed above. If, for
example, you fit nearly all the criteria
but were already 17 when you came to
the U.S. to live, you will not qualify. The
same goes if you havent lived in the U.S.
continuously for the required period but
spent a few years in your home country.
USCIS will also look closely at whether
the schools from which you claim to
have graduated are in fact recognized and
accredited (in most cases, public) schools.

The criminal grounds of ineligibility are


especially challenging for some applicants,
especially because the term significant
misdemeanor has not previously appeared
in the immigration law, and thus has not
yet been applied to many individual fact
patterns by USCIS or the courts.
According to USCIS statements,
significant misdemeanors include any
that involved violence, threats, assault,
burglary, domestic violence, sexual abuse
or exploitation, larceny, fraud, unlawful
possession or use of a firearm, driving
under the influence of drugs or alcohol
(DUI or DWI), obstruction of justice or
bribery, drug possession, drug distribution
or trafficking, fleeing from a lawful arrest
or prosecution, or leaving the scene of an
accident. The sentence imposed does not
matter if you were convicted of one of
those crimes.
Significant misdemeanors may also
include any other misdemeanor for which
the applicant was sentenced to more than
90 days in prison, not including suspended
sentences, pretrial detention, or time held
on an immigration detainer. (Again, three
or more misdemeanors of any sort are a
disqualifier for DACA.)
USCIS has also explained a nonsignificant misdemeanor as including a
crime punishable by imprisonment of more
than five days and less than a year and
that is not on USCISs list of significant
misdemeanors.

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What Currently in School Means


If you are currently in school, or have
graduated, you will need to make sure your
school or program qualifies for DACA. USCIS
has set forth narrow guidelines for those
schools or programs that qualify.
You are currently in school if you are
enrolled in one of the following.
1. Elementary, junior high, or high school.
Applicants enrolled in a public or private
elementary school, junior high school, or
high school meet the currently in school
requirement.
2. ESL program. An English as a second
language program (ESL) can qualify you
for DACA, but only if the program is a
prerequisite for postsecondary education,
job training, or employment and you
are working toward one of these after
completing the ESL program.
3. Educational program; preparation
for diploma or GED. Other educational
programs qualify if they are designed to
help obtain a high school diploma or GED.
The program must be funded by state or
federal grants or, if privately operated, be of
demonstrated effectiveness. Demonstrated
effectiveness is measured by the success
and quality of the program, including its

length of operation and track record


of success in placing participants in the
workplace or in higher education. So, if
you choose a privately run GED program,
be selective and steer clear of ones that
are recently opened or do not have a
solid reputation. Programs run by local
universities, adult schools, or community
colleges are probably the best options.
4. Education, literacy, vocational, or career
training program. One of these will meet
the currently in school requirement if:
the program is funded by state
or federal grants or the applicant
can prove that the program is of
demonstrated effectiveness (as
described above)
the program is intended to place
the applicant into postsecondary
education, job training, or
employment, and
the applicant is preparing for postprogram placement.
If you are not now in school, you may still
become DACA-eligible if you enroll in one of
the programs described above. USCIS will look
at whether you are enrolled in school at the
time you submit your DACA application.

CHAPTER 26|DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)|607

C. Risks and Downsides to


Applying for DACA
If you are considering applying for DACA
but havent yet done so, first consider
your own personal, immigration, and
criminal history and the risks of providing
these details to the U.S. government, as
described in this section.

1. DACA Offers No Long-Term


Benefits

Immigrants who have criminal


records (including certain significant
misdemeanors, juvenile offenses,
and expunged convictions), links to
organizations flagged by the FBI, or past
instances of committing immigration fraud
are not only ineligible for DACA, but also
risk being placed into removal proceedings
if they submit a DACA application.
Similarly, USCIS may share the personal
information of family members who are
undocumented and listed on a DACA
application with certain branches of the
U.S. government if those family members
are deemed a national security or public
safety threat.

DACA is a discretionary, stopgap remedy


that provides a stay of deportation from
the U.S. for three years at a time and a work
permit. It is not an amnesty, does not forgive
past grounds of inadmissibility, and does not
provide a pathway to U.S. legal residency or 3. DACAs Travel Possibilities
Create Risks of Being Stopped
citizenship. And the longer you have already
Upon Return to the U.S.
waited to apply, the less time you will likely
have in which to enjoy DACAs benefits.
If you are granted DACA relief, you may
not freely travel in and out of the U.S.
2. DACA Requires Sharing Personal but you do gain the ability to apply for and
obtain whats called Advance Parole (a
Information That Could
travel document) for humanitarian, work,
Later Lead to Deportation
or school purposes.
USCIS has stated that DACA applicants
Even so, your travel will trigger the
information will not be shared with
scrutiny of border agents upon your
Immigration and Customs Enforcement
return. DACA is relatively new territory
(ICE) unless applicants present national
in immigration law, and questions remain
security, fraud, or public safety concerns. as to how other agencies will treat its
Nevertheless, the risk remains that a future beneficiaries. Because U.S. Customs and
event (such as a terrorist attack or a change Border Protection (CBP) is separate from
in administration) could cause USCIS to
USCIS and restricts U.S. entry to foreign
interpret those categories more broadly.

608|U.S. IMMIGRATION MADE EASY

travelers with valid visas, DACA recipients


have no guarantee that they will not be
detained when attempting to reenter the
U.S., based on their past immigration
offenses or criminal history.

4. DACA Benefits Vary


State by State

counterfeit identity document such as a fake


passport or a falsified birth certificate to
obtain a visa or another immigration benefit.
Even if you entered the U.S. as a minor
child or your parent or guardian used a
false document on your behalf without
your knowledge, until a law is passed
that forgives fraud that was committed
unknowingly, USCIS will still consider it
to be part of your immigration history.

While some states, such as California and


Texas, allow DACA beneficiaries with
an employment authorization document
2. Dont Apply If You Have
(EAD) to apply for a drivers license,
Committed Serious
others, such as Arizona and Nebraska, have
Immigration Offenses
forbidden this. In-state tuition regulations
also differ from state to state.
USCIS may disqualify applicants who
have serious immigration violations in
their history or have committed several
D. Who Shouldnt
offenses, such as multiple reentries, as well
Apply for DACA
as immigrants who have been deported in
the past.
If you face a significant risk that your
If and when the DACA program ends,
case may be referred to Immigration
immigrants who have submitted such
and Customs Enforcement (ICE), which
information may undergo scrutiny from
may lead to removal proceedings being
immigration enforcement authorities.
instituted against you, DACA may not be
an appropriate remedy for you.

1. Dont Apply If You Have an


Incident of Fraud in Your Past
If you entered the U.S. by means of fraud,
you should not apply for DACA relief.
Doing so would risk having your case
referred to ICE. Common ways in which
entrants commit fraud include using a

3. Dont Apply If You Have


a Criminal Record
You are ineligible for DACA if you
have been convicted of a felony, one
significant misdemeanor, or three or
more misdemeanor offenses that do not
arise from a single event. Minor traffic
offenses will not count as a misdemeanor

CHAPTER 26|DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)|609

for purposes of DACA even if they were


classified as a misdemeanor under state law.
Fortunately for DACA applicants, USCIS
does not immediately disqualify people
who have just one or two misdemeanors or
juvenile convictions or expunged offenses.
USCIS will look at applicants juvenile or
expunged records and decide on a case-bycase basis whether or not to grant DACA
relief. But even after that, immigration
officials might still deny your application.
If you have any doubt as to whether a
criminal conviction could disqualify you
from DACA relief and possibly lead to
an ICE referral, consult an immigration
attorney.

4. Dont Apply If You May Be


Viewed as a Public Safety or
National Security Threat
You may also be disqualified from receiving
benefits under DACA and may be placed
into removal proceedings if you are
considered a threat to public safety or
national security. USCIS may take into
consideration any criminal activity that
did not result in a convictioneven arrests
and dismissed charges.
USCIS has stated that membership in
a gang or an organization whose criminal
activities threaten the U.S. public welfare
would qualify as a public safety or national
security threat. Again, since DACA
is considered discretionary relief, any

membership in a group that is flagged as


having terrorist ties or anti-American views
might lead to denial of your application
and possible investigation by ICE.

E. How to Apply for DACA


The application process for DACA involves
submitting two government forms along
with supporting evidence showing that you
qualify for this status, and paying a fee.
CAUTION
The procedures described here
apply only to people who are not in removal
(deportation) proceedings. You can submit
a DACA application if you are in immigration
court proceedings, but some procedures will be
differentget an attorneys help.

1. DACA Application Forms


The forms to submit to apply for DACA
include:
Form I-821D, Consideration of
Deferred Action for Childhood
Arrivals, and
Form I-765, Application for
Employment Authorization,
accompanied by a worksheet called
Form I-765WS.
These are available as free downloads on
the USCIS website, at www.uscis.gov/forms.

610|U.S. IMMIGRATION MADE EASY

bank, credit card, and other financial


records showing your activity in the U.S.
store, restaurant, and online shopping
In addition to filling out the forms, you
receipts in your name and/or
will need to submit documents showing
indicating items sent to your address
that you meet all the DACA criteria,
Facebook check-ins or Tweets
including proof of your identity, age upon
indicating presence in the U.S.
entry into the U.S., academic record,
medical and dental records indicating
continuous physical presence in the United
your presence at U.S. doctors offices
States since January 1, 2010, and unlawful
or hospitals
presence is the U.S. on November 20, 2014.
records of working for U.S.
Such evidence might include:
employers, and
birth certificate
U.S. military records.
copy of passport or other photo
These are simply examples, and you
identity document
can present other documents unique to
copy of visa and Form I-94 (if you
your situation. If, for example, you won a
overstayed)
swimming contest at a U.S. summer camp,
past documents from immigration
a copy of your certificate would be good
authorities, even if they showed you
evidence of your physical presence here.
were stopped or ordered into removal Some people have even submitted traffic or
proceedings
speeding tickets (though any more serious
travel receipts, for example showing
run-in with police might be problematic for
plane tickets to the U.S.
your DACA eligibilitytalk to a lawyer).
school records and correspondence,
The fee for this application is $465,
including acceptance letters, report
which includes the standard $85 biometrics
cards, transcripts, progress reports,
(fingerprinting) fee for a background check
diplomas, and GED certificates,
and the $380 fee for an EAD (work permit).
showing the name of the school and a In limited circumstances, USCIS may grant
description of the program, your dates a fee exemption to applicants who fall below
of attendance, and degrees received
the U.S. poverty line.
copy of U.S. drivers license
The USCIS website has additional
personal affidavits or statements by
information about how to apply, with
friends, teachers, employers, religious suggestions for documentation. At www.
leaders, and others in authority
uscis.gov, under Other Services, click
tax records
Humanitarian, then Consideration of

2. Preparing Documents in
Support of DACA Application

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Deferred Action for Childhood Arrivals


Process.

3. Renewing Your DACA Status


An initial grant of DACA protects you for
two years. To remain protected, you must
apply to renew your DACA status, which
you are eligible to do if you:
have stayed in the U.S. since getting
DACA (after Aug. 15, 2012), except if
you left with advance parole
have continuously resided in the U.S.
since you submitted your most recent
DACA request that was approved, and
have not been convicted of a felony,
a significant misdemeanor, or three
or more misdemeanors, and do not
otherwise pose a threat to national
security or public safety.
Your request to USCIS for renewal
should consist of:
Form I-821D. Make sure youre using
the most recent version, available at
www.uscis.gov/i-821d.
Form I-765, Application for
Employment Authorization, and
Form I-765WS Worksheet (both at
www.uscis.gov/i-765)
Filing fees: $380 for Form I-765
and $85 for biometric services
(fingerprints and photo), for a total
of $465.

You dont have to submit any additional


documents at the time you file for renewal,
except any new ones involving removal
proceedings or a criminal history that you
did not submit to USCIS in your previously
approved DACA request. You might have to
provide additional documents or statements
to verify information on your renewal
application, if USCIS asks for them.
TIP
Submit your renewal request
well before your current period of deferred
action will expire. Dont submit it any more
than 150 days (five months) before your current
period expiresUSCIS will probably reject it and
return it to you with instructions to resubmit it
closer to the expiration date. By submitting your
request at least 120 days before the expiration
date, however, you improve your chances
of being protected if USCIS gets delayed in
processing renewals and your current two-year
grant expires. In such a situation, USCIS may
provide you deferred action and employment
authorization for a short period of time until it
finishes processing your request. Otherwise, until
you get the renewal, you wont be able to work,
and you will start accruing days of unlawful
presence (important to avoid, as explained in
Chapter 3).

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