Deferred Action for Childhood Arrivals (DACA)

In June 2012, the Obama administration introduced Deferred Action for Childhood Arrivals (DACA). DACA is an offer to defer removal (deportation) proceedings against certain “low priority cases.” If granted, DACA provides employment authorization for two years to qualifying undocumented or out-of-status persons who are at least 15 years of age when they apply. (There are different age limits or different application procedures for applicants who are under an order of removal or in immigration custody.)

DACA does not offer a path to a green card. A DACA grant is good for two years, subject to renewal. But as of September 1, 2012, USCIS has only general information and no specific details about the renewal process. And there are at least three other caveats mentioned at the end of this post.  So who should consider DACA? DACA offers a defense to those already in removal proceedings who do not qualify for other forms of relief. And undocumented or out-of-status persons with limited financial support (e.g., from their parents) can look to DACA for employment authorization.

To qualify for DACA, the applicant must satisfy one of the following:

  • Be in school;
  • Have graduated from high school;
  • Have obtained a certificate of completion from high school;
  • Have obtained a GED certificate; or
  • Be an honorably discharged veteran of the Coast Guard or US armed forces.
Beyond that, the DACA applicant must also satisfy all of the following criteria (and a few others that appear on the DACA application forms):
  1. Born after June 15, 1991;
  2. Entry into the United States before age 16;
  3. Continuous residence in the US from June 15, 2007 (i.e., only brief, casual, and innocent absences prior to August 15, 2012);
  4. Present in the US on June 15, 2012;
  5. Present in the US when the DACA application is filed;
  6. Not in lawful immigration status on June 15, 2012; and
  7. No past felony conviction, no past conviction for a significant misdemeanor, and fewer than three non-significant misdemeanors (the USCIS DACA Page explains how to determine whether a past criminal conviction is a disqualifying felony, or a disqualifying significant misdemeanor, or if the conviction should be counted as a non-significant misdemeanor).

Application forms and fees.  The applicant submits forms I-821D, I-765, and I-765WS.  There is a $465 filing fee for form I-765.

Caveats.  Well, there are at least three things to watch out for:

  1. Can DHS use the information on the DACA forms to remove (deport) the applicant?  From the USCIS DACA Page, it appears that an applicant may be referred to ICE for removal (deportation) proceedings if the case involves a criminal offense, application fraud, threat to national security or public safety, or even if “DHS determines there are exceptional circumstances.”
  2. DACA is a type of prosecutorial discretion offered by the executive branch of the federal government.  What the Executive grants, the Executive can rescind.  DHS can end (or renew) DACA at any time.  It is not clear whether or how DHS will use the information provided on the DACA application forms if DHS ends DACA.
  3. Can DHS use the information on the DACA forms to remove (deport) the applicant’s undocumented parents or guardian?  Current DHS policy is that DHS will not take information about an applicant’s family members or guardians from a DACA application and pass it on to ICE for immigration enforcement.  But the USCIS DACA Page recites that “[t]his policy . . . may be modified, superseded, or rescinded at any time without notice, . . . and may not be relied upon to create any right or benefit . . . enforceable at law by any party . . .”
See also Julia Preston, Quick Start to Program Offering Immigrants a Reprieve, N.Y. Times (Sept. 11, 2012).