Deferred Action for Childhood Arrivals (DACA)
DHS Announces Availability of Deferred Action for Childhood Arrivals (DACA)
What is Deferred Action for Childhood Arrivals?
Deferred action for childhood arrivals is a discretionary determination that will defer removal of individuals who meet certain requirements outlined by USCIS. If approved, however, does not confer lawful status upon an individual, but does prevent the additional accrual of unlawful presence (if approved). In addition, under existing regulations, an individual whose case has been deferred is eligible to received employment authorization for a period of deferred action, provided he or she can demonstrate "an economic necessity for employment." As a reminder, this is a policy decision - the Department of Homeland Security ("DHS") can terminate or renew this deferred action policy at any time.
When will DACA be available?
United States Citizen and Immigration Services ("USCIS") will begin accepting requests for consideration of deferred action on August 15, 2012.
Who may request DACA?
You may request consideration of deferred action for childhood arrivals if you:
1. Were you under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. 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.
What types of documentation need to be submitted in support of a DACA application?
Documentation to demonstrate that you entered the U.S. before the age of 16, which may include the following: financial records, medical records, school records, employment records, and military records.
Documentation to demonstrate residence in the U.S. for at least five years preceding June 15, 2012, may include the following: financial records, medical records, school records, employment records, and military records.
Documentation to demonstrate physical presence in the U.S. preceding June 15, 2012, may include the following: financial records, medical records, school records, employment records, and military records.
Documentation to demonstrate current school enrollment, or the that you have already graduated high school or obtained a GED may including the following: diplomas, GED certificate, report cards, or school transcripts.
Documentation to demonstrate an honorable discharge from the Coast Guard or Armed Services may include: report of separation forms, military personnel records, and military health records.
Affidavits in lieu of documentation: Affidavits will not be sufficient on their own to demonstrate that you meet the guideline outlined above. However, affidavits may be used to support the following guidelines:
(1) a gap in the documentation that you meet the five year continuous residence requirement; and
(2) a shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.
How do you apply for DACA?
Beginning August 15, 2012, to apply for DACA, you must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals to USCIS. There is no filing fee for this form. However, most individuals will also want to apply for Employment Authorization by concurrently submitting Form I-765, Application for Employment Authorization and a Form I-765WS, Worksheet, establishing their economic need for employment. If filing for Employment Authorization, the total filing fee (including biometrics fee) is $465. (Note that there are very limited fee exemptions available. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet the following requirements: (1) 1. You are under 18 years of age, homeless, in foster care or otherwise lacking an parental or other familial support, and your income is less than 150% of the U.S. poverty level; (2) 2. You cannot care for yourself because you suffer a serious, chronic disability and your income is less than 150% of the U.S. poverty level; (3) You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the U.S. poverty level.
What to Expect After filing for DACA
As with most affirmative applications filed with USCIS, upon receipt, USCIS will review the application packet to ensure completeness and issue a Receipt Notice upon acceptance. This Receipt Notice can be used to
follow up with USCIS in the future on these matters and checking the case status online.
A few weeks after the Receipt Notices are generated, USCIS will schedule the applicant for a Biometrics Appointment at a local USCIS Field Office or an Application Support Center. At that appointment, the foreign national will have their picture and fingerprints taken so that the necessary security background checks can be completed.
Request for Evidence/Interview Notice
If USCIS determines that the information/documentation submitted is inadequate to satisfy the applications requirements and further information is needed, they will issue a Request for Evidence (RFE). The Request for Evidence will specifically state the documents/information they are seeking and a timeline under which they need to be submitted (all requested information should be submitted at the same time). Failing to respond to the RFE may result in the denial of the application. Alternatively, the applicant can be scheduled for an interview at a local USCIS office.
Issuance of EAD
If approved for deferred action, the applicant will receive their EAD separately (if previously applied for).
Given the broad age-range of applicants that this process has the ability to benefit, added with the fact that it is a new policy, applicants should easily expect that processing times will vary, but will easily take several months.
Individuals who believe they may qualify for DACA are strongly urged to consult with an experienced immigration attorney prior to submitting their application. In order to make the application process as smooth as possible, and to address any problematic issues affirmatively, it is imperative to document each and every requirement with the best evidence available and explore alternative strategies where the best evidence is not available. As USCIS begins adjudicating these applications and releasing new guidance, our firm of experienced immigration attorneys can keep abreast of these developments and help you navigate this process. In addition, we can also confirm whether you may have any other alternatives available to you that may help you legalize your status.