We've invited Curran & Berger LLP, a private immigration law firm that has specific experience and expertise with DREAMers, to give an overview of the announcement and address common questions and concerns. For the past year we've been collaborating with Curran & Berger LLP to offer private consultations to DREAMers across the country.
On June 15, 2012, President Obama announced a plan to assist undocumented youth.
It was not a law, or even a regulation. It was not a long-term solution, nor did it grant a legal status. But, it was a very exciting step forward. This program, called Deferred Action for Childhood Arrivals (DACA) is a way for undocumented young people to ask the U.S. Immigration Service to exercise prosecutorial discretion to let them stay for two years at a time. And DACA can also lead to a 2 year work card and a Social Security number.
We are very pleased that the U.S. government has been taking steps to help undocumented young people, and we look forward to seeing this program develop.
The government has been working steadily over the past months to provide clear information. In fact, there were immediate positive steps in advance of the formal guidance, including an agreement by Immigration and Customs Enforcement (ICE) to join in a request for deferred action for those with Voluntary Departure agreements that have not expired yet, and also the first reports coming in of ICE officers releasing Dreamers from custody and declining to send the young person to immigration court. In one case, the ICE officer said this move was "thanks to Obama."
We encourage you all to read this FAQ before seeking legal advice to make your visit to a clinic or lawyer more efficient.
Here are some initial answers to the most common questions we are receiving:
What is DACA?
This was a surprising and interesting move by President Obama. For years, Deferred Action was a little used idea - offering a temporary opportunity to stay in the US for some kind of extreme humanitarian reason. There was no form or formal procedure. It was really a request directly to the local USCIS District Director. Now that discretionary remedy is being expanded and formalized into one of the largest immigration programs around. This is not a status, or a visa, but a kind of limbo. It is a discretionary decision by the Department of Homeland Security not to try to remove (deport) someone who does not have a legal right to stay.
DHS stated that "economic necessity" is required to receive a work card through Deferred Action. One of the three forms involved in the DACA application is an I-765 WS worksheet, which is used to determine whether or not there is economic necessity. We have found that 15-30 year olds who cannot work and have no assets can show economic necessity.
Who qualifies for DACA?
Unauthorized individuals that meet the following criteria should be eligible to apply for Deferred Action. Please note that some of these criteria will be further clarified when USCIS releases its official guidance.
You must be 15-30 years old to apply.
Under 31 years old as of June 15, 2012 (the date of the President's announcement).
You must have arrived in the U.S. before you turned 16.
In addition, youth under 15 years old can qualify if they are in removal proceedings, have a voluntary departure order, or have been removed and are not currently in detention.
In order to apply, you must be continuously present in the U.S. for a minimum of 5 years.
You must have been present in the U.S. on June 15, 2012.
If you have traveled during the past five years, the travel must have been "brief, casual and innocent" to avoid interrupting your continuous presence. This standard is used in other parts of immigration law so there is some reasonable guidance on this. Deferred Action will not be granted to individuals who leave and re-enter the country after August 15, 2012.
Education or military service
At least one of the following must be true in order for you to apply:
You are currently in high school. This includes vocational programs, or any any school that is "designed to lead to placements in a job or further education." If the school is not publicly funded, then DHS will look at the "demonstrated effectiveness of the program." These educational requirements are generous but clearly do not include schools set up to help DREAMers qualify for DACA.
You have earned a GED or high school diploma.
You have been honorably discharged from the U.S. armed forces.
You do not need to have earned your GED by or been in school on the June 15 announcement date. Even if you are not currently pursuing your education, you can earn your GED now and apply in the future, or go back to school and then apply. The USCIS FAQ has excellent information regarding the education requirement.
Clear criminal record (a criminal background check will be required)
Any one of the following will make you ineligible for Deferred Action:
three or more misdemeanors of any kind
If you are considered a threat to national security or public safety, you are not eligible and are at increased risk for removal.
Will I be allowed to renew my DACA?
According to the United States Citizenship & Immigration Services (USCIS), you may be able to extend your Deferred Action for Childhood Arrivals status. However, USCIS states that extensions will be made on a case-by-case basis. This means that USCIS will have discretion to deny your extension if you seem ineligible at the time of renewal.
For example, your extension could be denied if you have been convicted of certain crimes or broke continuous presence in the U.S. after your ﬁrst DACA approval.
Will I be able to get a driver's license with DACA? What about in-state tuition?
This is dependent on the state. In many cases, lack of a social security number is the major obstacle in gaining various benefits. The Federal Real ID Act lists Deferred Action as a category eligible for a license, but states can impose additional requirements.
We are not sure if you will be able to get a license to be a professional, such as a teacher or social worker - that may vary state by state. In-state tuition eligibility will also vary state by state. Seehere.
I am afraid to apply. How do I know that USCIS won't use this information in order to find and deport me?
United States Citizenship and Immigration Services (USCIS) has stated that they are only concerned with deporting those who pose a threat to national security or have committed fraud on their DACA application. If you meet all of the requirements and do not have a criminal record, it is highly unlikely that USCIS will come after you. In a meeting with Director of USCIS, Alejandro Mayorkas addressed us personally and stated that USCIS is invested in the success of DACA. The US government has spent millions of dollars in implementing this program so that those who qualify for it, will apply and receive its benefits. USCIS wants to use DACA as an example of how they are capable of creating and implementing new immigration policies.
Should I ask for a work card even if I am not planning to work?
YES. The Deferred Action request approval will be a sheet of paper, but the work card is a U.S. government issued photo ID, which is very good to have. The work card will also allow you to apply for a Social Security number, and depending on the state you are in may allow you to get a driver's license. Lastly, the word card is part of the DACA application fee, so it does not cost anything.
Do all Dream Act-eligible students qualify for DACA?
No. The criteria are somewhat different. If you have a serious issue in your immigration history, such as removal or multiple re-entries, you may still be eligible, but you should discuss your situation with an attorney before applying – Deferred Action is discretionary, and the US government may choose not to exercise its discretion for someone with serious immigration issues. Also, if Deferred Action is not extended in the future, then someone with serious immigration issues would be at greater risk.
I am under 18 years old. Is there anything special I should be thinking about?
Yes. It is particularly important for you to consider applying for DACA. The 3 and 10 year bars, and unlawful presence (all complicated legal penalties based on a 1996 law) can possibly be avoided if you are under 18 when you apply for DACA. There is no unlawful presence counted for the time you are under 18 or for the time you spend with DACA.
Does DACA make it easier to gain permanent residency or citizenship?
We are not sure. The President has now authorized this program, but we will have to see how long it takes, and how many people are actually granted. Deferred Action is discretionary. We are optimistic that the easy cases (those with no criminal or immigration court issues, and who can document their eligibility clearly) will be approved in 2012 or early 2013. Beyond that, USCIS has discretion to deny cases for public safety, national security, or fraud reasons.
I might have another option for immigration relief. Should I still apply for Deferred Action?
There are three basic groups of Dreamers:
Those who do not qualify under the new policy should continue to look for other immigration opportunities to move into legal status, and also continue to advocate for a full DREAM Act.
Those who do qualify under the new policy but have another short term option for permanent residence may still be able to apply for Deferred Action, but should definitely continue to pursue the longer term remedy. You can apply if you have an application pending for another kind of immigration remedy, but not if you have a legal status. We have created a Guide To Long-Term Immigration Remedies for DREAMers.
Those who qualify under the new policy and do not have other short term options should consider applying for Deferred Action and a work card.
Note again that if you have a criminal issue, or have been referred to immigration court or removed from the US, or have left the United States and entered again, you should seek legal counsel before applying for Deferred Action.
Should I hire an attorney to process DACA?
There is no rule that says you must have an attorney. We do strongly recommend that you rely on a reputable attorney or legal service agency to evaluate your case, and assist you. There are an estimated 1.7 million people who may be eligible, so working with a legal service organization near you that is set up to offer efficient free advice may be a good option. E4FC has put together recommendations for how to find legal help. You can read more about this topic on the AILA leadership blog, as well as on the USCIS website.
Note that many Dream Act groups of young people themselves, with the help of attorneys, have created some useful self-assessment tools. These can be useful before seeing an attorney or legal service provider to help clarify issues and save time. Legal service agencies will be doing a "volume business" over the next several months. You can help find low and no cost legal aid at the following websites:
If I am still deciding about whether to apply, what can I do now to get ready?
For now, you can start to gather any proof you can, within reason, that you have:
lived in the US 5 years
were in the US on June 15, 2012, and
came to the US before age 16.
This can be anything - credit card receipts, bills, doctor or school records, etc. You can be creative. There is no magic formula for providing evidence, even letters signed and notarized by family, friends, or anyone that has known you for 5 years or longer are better than nothing. More details are in the ICE FAQ linked above. If you cannot document a particular date, then try to get evidence before and after that. The Immigration Service will be concerned that people who have been here 4.5 years will say they were here 5 to try to qualify, or that people may try to enter the US next week and apply for Deferred Action – that is the reason for these requirements. So, for now, do your best to come up with any documentation that you qualify.
We have put together a chart with suggestions, available here.
What types of documents can high schools provide to help demonstrate an applicant’s eligibility for DACA?
School records can potentially help applicants demonstrate, among other criteria, that they are currently enrolled in school, have graduated from high school, or have obtained a GED, and have continously resided in the U.S. from June 15, 2007-June 15, 2012.
Do documents that high schools provide need to be "official"?
United States Citizenship & Immigration Services (USCIS) has stated that there is no fixed requirement for what form the school records must take. What is important is that documents include the applicant’s name, the time period the document covers, and evidence of coursework completed. Keeping in mind the variety of documents that each school is able to provide, USCIS is prepared to accept any documents that schools provide to applicants.
What if these documents cannot demonstrate that the applicant was physically present in the U.S. during summers or school breaks?
United States Citizenship & Immigration Services (USCIS) has stated that there is no requirement that applicants must prove that any given day or summer must be accounted for. USCIS is aware that schools have breaks.
What if applicants who are highly mobile and attended various schools have trouble obtaining school documents?
This is especially common with migrant farmworker programs. United States Citizenship & Immigration Services (USCIS) has stated that they are sensitive to the circumstances of each applicant. They suggested that other documents, such as medical bills, might be more useful.
I have a fake Social Security Number. Do I need to disclose this on the application? Will it have a negative impact on my application?
You do not have a real SSN, so you should write "none" on the Application for Employment Authorization Form (I-765). By contrast, you should leave that box blank on the Application for Deferred Action (I-821D). If your application for work authorization is approved, you can apply for a real SSN. When you have a real SSN, you can talk to an accountant about possibly getting the money you paid into the Social Security system transferred to your new legitimate number.
What does it mean to have "entered without inspection" (EWI) and how might this affect my DACA application?
It is very important to understand the way you came into the United States. Some situations are simple - if you came across the border and never interacted with a U.S. border agent, then you are EWI. If you entered through an immigration checkpoint or airport on a temporary visa, such a tourist visa or student visa) and then overstayed, you are not EWI.
The more complicated situation is one that is common for DREAMers. What if you came across the border with fake papers, but were actually "inspected" by a U.S. immigration official? This could include using someone else's passport. Or what if you were a young child and asked to pretend you were sleeping in the back of a car - you may not know what was said about your status.
For those situations - you need to think about three separate things. Because there are so many fact patterns, we strongly recommend getting as much information as you can from family, those who were there with you, previous attorneys, and/or Freedom of Information Act requests. We have met with many DREAMers who self-reported EWI who were not, and vice versa. Here are the three issues to think about:
How does this affect a DACA application? Any of those entries may qualify for DACA - the form gives a choice of "no lawful status" for manner of entry, which may apply. Consult a legal service organization to review the details of your situation. DACA does not ask for many details on the manner of entry.
For future immigration applications, such as a green card through marriage to a U.S. citizen, those entries may count as entering with inspection. In case you hear different stories about this, there was a federal court case a few years ago where the judges said that an inspection that was based on false papers does not count. But that decision was vacated, and for now, entering with false papers can count as an admission. For more details on this, see http://www.legalactioncenter.org/litigation/adjustment-status-when-admission-involved-fraud-or-misrepresentation.
Could whatever happened at the border be considered fraud or misrepresentation? If so, it could be an issue if discovered in DACA eligibility. It could also be considered a crime under federal law (such as a false claim to U.S. citizenship if you used a U.S. passport or birth certificate to entry. Or it could be considered a crime under state law (identity theft if you used someone else's documents). There may be ways to file for DACA, and waivers available during the green card process. If you were quite young, it is unlikely that the Immigration Service would hold you responsible for presenting a false document. But if you were older, it is possible. Also, there may be questions about who gave you the false documents, and potential liability for them - if your parents gave you a false document to show, that could lead to charges or immigration action against your parents.
This is all a very complicated area of law, and requires a good, authorized legal service provider to help you work through this. Be careful not to assume that an entry was EWI or not EWI without investigating - no matter what you were told before. These are situations that immigration attorneys face regularly, so do not hesitate to ask for help figuring out what happened and what it means for you.
I am concerned that I will not be able to show sufficient economic need for the Employment Authorization Worksheet (I-765WS).
We expect USCIS will be pretty lenient when assessing an applicant's economic need, but it is very hard to say. We suggest that you list anything that makes your economic picture harder in the space provided on the Employment Authoriization Worksheet (I-765WS)—debts from school, helping support family members, medical bills, inability to work in your field, etc. Keep it short and simple.
Will DACA let me travel internationally?
International travel is possible. But, this could be a real risk and should only be considered if travel is urgent, and after consultation with an attorney.
International travel after August 15, 2012 is not permitted at all unless you are granted Deferred Action and also apply for and receive Advance Parole travel documents. DHS has stated that it will only grant Advance Parole for "humanitarian, education or work purposes."
Based on an April, 2012 case, it may be possible to travel without triggering the 3 and 10 year bar - this is a cutting edge area of DACA and we strongly recommend not using an Advance Parole travel document to leave the United States after DACA is granted without talking to an immigration attorney. You will probably have to balance uncertainty in this area against the reason for the travel. Note that AP can only be sought AFTER DACA is granted, so it will be a while before anyone is in this situation.
I have some minor offenses on my criminal record. Am I disqualified?
A felony, a significant misdemeanor, or multiple misdemeanors will disqualify you for deferred action.
A felony is any local, state, or federal offense that is punishable by a term of imprisonment exceeding one year.
Significant misdemeanor includes any crime of domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug distribution or trafficking, DUIs (regardless of time served) and any other misdemeanor where more than 90 days in prison was the penalty. A suspended sentence is not included. USCIS has guidance here.
Multiple misdemeanors means three or more of any type of misdemeanor.
Note that the term "significant misdemeanor" is not an immigration term, and will have to be defined. It may be similar to a "crime of moral turpitude." Whole articles have been written about that - and it is a very complicated area of law that depends on the type of offense, and how the law is written. Each state, for example, has different definitions of shoplifting or driving under the influence.
We do know that minor traffic offenses will not be a problem, but that term has not yet been fully defined. State-specific immigration offenses will generally not be counted, nor will any crime punishable by less than 5 days of imprisonment. The guidance does not include simple assaults, drug possession and various other minor crimes as "significant misdemeanors." But this is a discretionary program, and DHS still may determine that certain actions make a student a threat to public safety, and deny the application.
DHS is taking DUI convictions seriously. DUI convictions disqualify you from DACA. Juvenile offenses and expunged records will be reviewed on a case-by-case basis. If you have EVER been arrested, charged or convicted of a crime, the first step is to get a certified copy of the court docket to prove what happened, and also a copy of the section of the law from the year this happened. A local law library, or sites such as http://www.law.cornell.edu/ can be helpful. You could also request a background check (this process varies by state).
An arrest is pretty self-explanatory. A conviction is a more complicated legal term - if you have admitted to the facts of the case, or plead guilty, or been found guilty, there may be a conviction for immigration purposes.
For now, anyone who has been arrested should get legal advice before applying for Deferred Action.
These recommendations are also summarized by the National Immigration Project here.
USCIS stated that Driving Under the Influence (DUI) will disqualify someone for DACA, but that expunged convictions won’t. What about an expunged DUI conviction?
USCIS stated that they would review expunged convictions on a case-by-case basis. They will look at the totality of the circumstances to determine whether to approve or deny the DACA request.
What if I am charged with a DUI but receive a conviction for a lesser charge, like a wet reckless in CA? Will I qualify for DACA?
USCIS stated that they are specifically looking at convictions and not the charges. That being said, because it is a discretionary decision, they will keep both in mind when making their decision.
Immigration experts agree that an individual who falls under this circumstance should work with an attorney and possibly submit evidence that highlights the applicant’s positive aspects and qualities, post-conviction.
I am in removal procedings, but I think I qualify for DACA. What do I do?
On June 18, ICE Director Morton announced that the agency is reviewing the entire EOIR court docket. They will administratively close all court proceedings for those that appear eligible for Deferred Action. Once their court case is closed, Dreamers should then follow any upcoming guidance about how to affirmatively apply for Deferred Action through USCIS.
I received a final order of removal, but I think I am eligible for DACA. Do I still need to leave?
Dreamers who have a final order of removal will be able to apply for Deferred Action. They should consult with an attorney before applying.
If I am granted DACA, will my family members get it too?
No. Each family member must qualify for Deferred Action individually. Parents or dependents cannot get Deferred Action through a family member.
Will my DACA application automatically get rejected if USCIS believes that I don’t have enough evidence?
Applicants have an opportunity to submit further evidence with ‘Request for Further Evidence’ notices (RFE’s) or Notices of Intent to Deny (NOID’s). If an applicant receives an RFE, s/he will have 84 days to submit extra evidence. If the applicant still needs further evidence, s/he will receive a NOID and the applicant will have 30 days to respond.
What percentage of DACA applicants are receving Request for Further Evidence (RFE) notices?
Between 25-35% of submitted DACA requests are receiving a Request for Further Evidence (RFE) notice. An RFE is used when a request is "lacking required documentation/evidence (initial evidence) or the officer needs more documentation/evidence (additional evidence) to determine an applicant's eligibility for the benefit sought", in this case DACA. The individual will be instructed with a) a list of evidence that must be submitted and b) a deadline for which the individual has to submit this evidence (usually it's about 30 days).
Will I have to go to an interview after submitting my DACA application?
USCIS has indicated that interviews will be scheduled for individuals whose DACA requests raises suspicion of fraud or for quality control purposes.
If I request DACA, and it is denied, will I get deported?
USCIS announced that there will NOT be an appeal process for Deferred Action. Once it is denied, it cannot be overturned.
In the case of a denied application, the applicant will only be placed in removal proceedings if there is a factor that heightens the priority for removal. This includes fraud: if an applicant is found to have willfully misrepresented him or herself in an attempt to get Deferred Action, he or she will be placed into removal proceedings. USCIS outlines their removal priorities here, but these priorities could shift if a different administration is elected.
A related question is whether the information in your Deferred Action application will be kept confidential. According to USCIS now, information form the applications will not be shared with ICE or CBP - the other immigration-related branches of the Department of Homeland Security UNLESS you are considered a threat to national security, committed fraud in your application, or have been convicted of a criminal offense. But, it seems that the information in your application may be seen by other federal agencies for purposes other than deportation.
If I am denied DACA, can I re-apply?
If a person’s DACA application is denied, s/he can file again with additional evidence.
Will a false claim to citizenship automatically disqualify me from applying for DACA?
USCIS has stated that these types of cases will be reviewed on a case-by-case basis; however, it is not part of the criteria.
What is the current processing time for DACA cases?
The goal has been 4-6 months processing time. However, USCIS has been processing DACA requests faster than 4-6 months.
Why is it that some cases are being processed for biometrics faster than others?
Some processing centers are experiencing a high volume of requests so the processing times differ for each applicant.
How is USCIS handling applicants who have worked unlawfully in the U.S.?
USCIShas stated that applicants can submit employment records to prove continuous residence and that they understand that people have worked without legal authority. Employment records will be accepted to prove eligibility.
Are family members/relatives who are undocumented and ineligible in any danger?
From everything we have read, and our experience with other large programs such as TPS, we do not believe that family members are at a greater risk if one of them applies for Deferred Action as a Dreamer.
On the August 14, 2012, USCIS Stakeholder call, Director Mayorkas explained that if a DACA application is denied, and the case is referred for enforcement or immigration court proceedings, USCIS will not share family or guardianship information from the DACA application for the purpose of trying to deport (remove) the other family members. But, that information can still be shared with other branches of government to investigate fraud or for public safety concerns. We expect that legal service providers helping with DACA applications will discuss the situation of undocumented family members with the DREAMer before the DACA application is filed.
What happens if I encounter a CBP or ICE officer?
If you encounter an immigration officer, you can expect to be briefly investigated and detained. CBP has said that anyone picked up will be interviewed and background checked, and that this process should take less than a day. If you appear eligible for Deferred Action, you will be released. You will still need to affirmatively apply for Deferred Action once the instructions are released.
Where can I find more information?
It can be difficult to understand what is going on, since this is happening so fast. We recommend that you start with the ICE memo and the USCIS memo. Additionally, please see:
America's Voice Education Fund: More information about Obama's new immigration policy. This page has information on Deferred Action; you can also sign up for e-mail updates as new information becomes available.