DACA (DEFERRED ACTION for CHILDHOOD ARRIVALS)
Deferred Action is a discretionary tool in which the Department of Homeland Security will generally not pursue your case. For this time period you will also be eligible to receive work authorization. It is important to understand that this is not a path to becoming a permanent resident nor a citizen.
Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012 the Secretary of Homeland Security released a memorandum allowing certain people to request consideration for deferred action. This would stop the accumulation of unlawful presence for the two year period in which DACA is granted and allow for employment authorization, also known as a work permit, for two years.
1) You were under age 31 on June 15, 2012;
2) You arrived in the United States before you were 16 years old;
3) You were physically present in the United States on June 15, 2012;
4) You are physically present in the United States at the time you request DACA;
5) You entered without inspection before June 15, 2012 OR your lawful immigration status expired before June 15, 2012;
6) You are currently in school, have graduated or obtained a certificate of completion from 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 United States; and
7) Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The fees set forth by USCIS for the submission of forms are subject to change. At this time the fee is $465, which includes the fingerprint fee, however the USCIS contains the most up to date information on the appropriate fees.
Legal fees for the case are different for each individual because the facts of each case differ from person to person, therefore you would need to meet with an attorney to discuss your case.
In Deportation Proceedings
If you are in removal/deportation proceedings you are still eligible to apply for DACA. You are also eligible to apply for DACA even if you have a final removal order or voluntary departure. However, depending several factors you may need to proceed with your application in a specific way. The proper steps to take are heavily dependent on the facts of your case and it is highly recommended that you speak with a licensed immigration attorney to assist you with the process.
If you are over 18 at the time that you submit your DACA application you will continue to accrue unlawful presence while the request for DACA is pending.
If you are under 18 at the time that you submit your DACA application but turn 18 while the request is pending, you will not accrue unlawful presence while the request for DACA is pending.
If you are granted DACA you will no longer accrue unlawful presence during the period of deferred action.
If you are granted DACA but previously accrued unlawful presence before it was granted, that unlawful presence will not be excused.
If you are granted DACA you will not accrue unlawful presence, however you will not be in lawful status either.
There is an important difference between “unlawful presence” and “unlawful status.” Unlawful presence is a period of time in which an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10- Year Bars).
Permanent Resident Status and/or Citizenship
If you are granted DACA it does not lead to lawful permanent resident status or permit a path to citizenship.
Renewing DACA approvals
Unless terminated, your DACA will be approved for a two year period and requests for extensions will be considered on case by case basis. You should also request an extension of your employment authorization if your DACA extension is granted.
To be considered “currently in school” you must be enrolled in:
- A public or private elementary school, junior high or middle school, high school, or secondary school;
- an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
- an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternative award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.
Travel After Being Granted DACA
If you are granted DACA you will not automatically be able to travel outside the United States. You MUST first apply for advance parole from USCIS and paying the applicable fee. USCIS will then determine whether your purpose for international travel is justified based on the circumstances of your case. Generally your request will be granted if you are traveling for humanitarian purposes, educational purposes or employment purposes. You may only apply for Advanced Parole once USCIS has granted your application for DACA. If you had an immigration court case there may be special procedures you must follow.
Appeals of Denials
If USCIS denies your application for DACA, you may not appeal, file a motion to reopen or a motion to reconsider.