On June 15, 2012, President Obama signed a memo calling for deferred action for certain undocumented young people who came to the U.S. as children and have pursued education or military service here. Applications under the program which is called Deferred Action for Childhood Arrivals (“DACA”) begin on August 15, 2012.
We put together the following FAQ to help answer questions about what this all means, who is eligible, and what eligible youth can do next.
What does “deferred action” mean?
Deferred action is a discretionary grant of relief by DHS. It can be granted to individuals who are in removal proceedings, who have final orders of removal, or who have never been in removal proceedings. Individuals who have deferred action status can apply for employment authorization and are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or to citizenship and it can be revoked at any time.
Who is eligible for DACA relief?
Individuals who meet the following criteria can apply for deferred action for childhood arrivals:
- are under 31 years of age as of June 15, 2012;
- came to the U.S. while under the age of 16;
- have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five year period, brief and innocent absences from the United States for humanitarian reasons will not be included);
- entered the U.S. without inspection before June 15, 2012, or individuals whose lawful immigration status expired as of June 15, 2012;
- were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
- are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
- have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety.
Applicants will have to provide documentary evidence of the above criteria. In addition, every applicant must complete and pass a biographic and biometric background check.
What is a significant misdemeanor?
DHS will deem as “significant” any misdemeanor involving any of the following, regardless of the sentence imposed:
- domestic violence;
- sexual abuse or exploitation;
- unlawful possession of firearms;
- driving under the influence; or
- drug distribution or trafficking.
In addition, any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to an immigration detainer, will be deemed a significant misdemeanor.
How old do I have to be to apply for deferred action?
In general you must be at least 15 years of age at the time you apply. The exception to this rule is if you are in removal proceedings, have a final order of removal or have an order of voluntary departure, then you can seek DACA even if you are below the age of 15.
If you were 31 years of age or older as of June 15, 2012 you are not eligible for DACA.
I am not currently in school, but would like to re-enroll in high school. Could I qualify?
Yes, to be considered “currently in school” USCIS will look to whether you are enrolled at the time you submit your application.
What types of school qualify under the DACA program?
Note, that you may be eligible even if you are enrolled in a program to obtain a GED or if you are enrolled in vocational school. The following information is pasted directly from the USCIS website:
To be considered “currently in school” under the guidelines, 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 alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.
Will a brief interruption in the requirement to be in the U.S. continuously from June 15, 2007 to July 15, 2012 affect my eligibility for deferred action?
For purposes of calculating this five year period, absences from the U.S. that are brief, casual and innocent will not be included. Absences will be considered to be brief, casual and innocent if:
- it was before August 15, 2012;
- it was short and reasonably calculated to accomplish the purpose of the absence;
- it was not because of an order of exclusion, deportation or removal;
- it was not because of an order of voluntary departure, or an administrative grant of voluntary departure before an applicant was placed in removal expulsion, deportation or removal proceedings;
- the purpose of the absence, or an applicant’s actions while outside of the U.S., were not contrary to law.
Where and how do I apply for deferred action?
All applications for deferred action will be submitted directly to a USCIS lockbox on the new DACA form. Even if you are in removal proceedings or have been ordered removed, the application still goes to USCIS. If you are detained, then you should alert your detention officer that you want to apply.
What forms will I need to submit?
You must submit the following forms or your application will be returned to you:
- Form I-821D Consideration of Deferred Action for Childhood Arrivals;
- Form I-765 Application for Employment Authorization Document;
- Form I-765 WS –EAD economic need supplement form
- $465 fee
- Additionally you will need to submit documentary evidence that you meet all of the criteria to qualify for deferred action (age; entry date; continuous presence; educational or military documentation; etc.)
How much does it cost to seek DACA?
The total fees for the application (including an application for an Employment Authorization Document and background check) will be $465. In other words, the deferred application form itself is free but you must apply for and submit fees for the employment authorization document application and the biometrics fee.
What if I can’t pay the fees?
There will be no fee waiver available for DACA. However, there will be a fee exemption under very limited circumstances for individuals who are in foster care, are disabled, or have medical care related debt and whose income is below 150% of the poverty level.
There may, in the future, be some limited grant money available from LGBT funders, for those who cannot afford the fees. Watch this space for more information in the future.
If I am granted deferred action, will I be entitled to work?
Every individual who is granted deferred action will be lawfully permitted to work. In order to be permitted to work, you must include an application for an Employment Authorization Document (EAD) in your application, which, when granted, will be valid for a period of two years and may be renewed. You must wait until the EAD is issued prior to accepting employment.
If I am granted deferred action, does that mean I have acquired legal status?
The grant of deferred action does not grant legal status to an applicant. In addition, it does not cure such applicant’s previous periods of unlawful presence. However, an applicant who is granted deferred action will not be deemed to be accruing unlawful presence in the U.S. during the time period when deferred action is in effect.
If I am granted deferred action can I travel outside the United States?
You can only travel outside the U.S. if you apply for, pay the fee ($360) and receive advanced parole after being granted deferred action and before traveling. Generally advanced parole is only granted for humanitarian reasons, educational, or employment reasons. If you leave the U.S. without advanced parole being granted or before a decision has been made on your deferred action application, you will not be permitted back into the United States.
If my application for deferred action is denied, can I file an appeal?
No. A denial of an application for deferred action cannot be appealed though you could file again (and pay the fee again.)
Is there any risk in applying for deferred action?
Yes, you should only apply after consulting with a qualified attorney. If you are here unlawfully and USCIS or ICE finds that you do not meet the criteria for deferred action, you may be placed in removal proceedings. Additionally, even if you are granted deferred action, the status is completely discretionary and can be revoked in the future.
Is the passing of the DREAM Act still necessary?
Yes. Deferred action is only a temporary measure and is not intended to, and does not grant, legal status to the individuals that the DREAM Act seeks to benefit. Given that only Congress can confer the right to legal permanent resident status or citizenship, it is essential that we continue to work towards the passage of the DREAM Act.
How can I get more information?
There are several great web-resources available. Educators for Fair Consideration has a step-by-step DACA guide. National Immigrant Justice Center is working on an online tool which, when live, will allow you to determine your DACA eligibility. And if you are a lawyer seeking further information, we urge you to read the AIC, AILA NIP practice advisory on DACA.