Deferred Action For Childhood Arrivals
One of the most important and most humane policy decisions of Barack Obama’s presidency was his memorandum on June 15, 2012 creating the Deferred Action For Childhood Arrivals program (DACA). The program was introduced to protect from deportation young people that had entered the United States prior to their 16th birthday, before June 15, 2007 and were now unlawfully present in the United States. These were children; therefore, they did not have the legal “intent” to break any laws. DACA’s most important benefits are its recipients have a lawful immigration status in the United States and they can obtain an Employment Authorization Card. However, as presently construed DACA does not provide a path to citizenship. The employment cards are valid for two years. Also, a collateral benefit to obtaining a DACA based employment card is that the DACA beneficiary is able, if eligible under a state’s laws, to obtain a driver’s license. Therefore, the DACA program in its simplest form allows the DACA recipients with a driver’s license to drive to the grocery store and other places to obtain necessities for their families. Since the recipients are considered to be in status while maintaining DACA, many of them will be eligible for consular processing without first having to prove a hardship to their immediate relative. President Obama created DACA because Congress failed, after years of trying, to enact laws to protect the Dreamers.
On January 20, 2021, President Biden’s administration directed his administration to take the necessary steps to protect DACA. Even though President Biden wants to protect the program, many Republican Attorney Generals have asked the Federal Courts to terminate it.
The Trump administration did not allow for new or initial applications for DACA to be filed, however on December 7, 2020 a U.S. District Court issued an order requiring the U.S. Citizenship and Immigration Services (USCIS) to accept first-time DACA requests based on the same terms that were in effect prior to September 5, 2017. It also allows DACA recipients to apply for permission to travel (advance parole, http://www.uscis.gov/i-131) outside the United States. This is an important point because under certain conditions when a DACA recipient can travel on advance parole and then is admitted into the United States on his/her return the recipient will be able to apply for permanent residency (green card). An example would be if the DACA recipient is or becomes married to a United States citizen. This is a very technical area and each person should consult with an attorney for legal advice.
The eligibility requirements for DACA are:
- Was under the age of 31 on June 15, 2012;
- Came to the United States before their 16th birthday;
- Has continuously resided in the United States since June 15, 2007 to the present;
- Was physically present in the U.S. on June 15, 2012 and at the time of making the DACA request;
- Had no lawful status on June 15, 2012;
- Are currently in school have graduated or obtained certificate of completion from high school, a GED, or are honorably discharged from the Coast Guard or Armed Forces of the U.S.;
- Have not been convicted of a felony, significant misdemeanor or three or more other misdemeanors and do not pose a threat to the U.S.
- The DACA applicant must be at least 15 years of age at the time of their application unless in removal proceedings then can be under age 15.
Filing a DACA application for the first time is fairly straightforward. Obtain as much evidence as possible to show that you meet the eligibility requirements listed. If an applicant is in school the easiest way to do so is to obtain the applicant’s enrollment history in the U.S. schools attended. This would show the dates of attendance and it may also show that the applicant started school prior to June 15, 2007. Birth records, passport, etc… would show their age. If the applicant is no longer in school it would be best to obtain other documents to show that the applicant was always living in the United States. If the applicant was not in school prior to June 15, 2007 then medical records would be the best documentation to show that the applicant was in the United States. If the applicant was no longer in high school then proof of graduation, a GED or some other documentation would be required to prove the school requirement. The applicant to prove that he/she lived in the United States after school might want to submit with his application with work records, bank records, or any other document that has the applicant’s name on it, a U.S. address and the date. The documents should be presented to USCIS in chronological order.
The forms needed are the I-821D (DACA application, http://www.uscis.gov/i-821d), I-765 (employment card application, http://www.uscis.gov/i-765) and I-765WS (http://www.uscis.gov/sites/default/files/document/forms/i-765ws.pdf) showing that there is a need for the applicant to work. Fee waivers are available only in very limited circumstances. Fortunately USCIS.gov is a very informative web site however it is always advisable to consult with an attorney.
THE CONTENTS OF THIS ARTICLE IS NOT LEGAL ADVICE, A PERSON SHOULD ALWAYS CONSULT PERSONALLY WITH AN ATTORNEY FOR SPECIFIC ADVICE ABOUT THEIR INDIVIDUAL CONCERNS OR CASE.