Description

Deferred Action for Childhood Arrivals (DACA) is a policy that was implemented to provide the Migrant youth with temporary protection from deportation. Many of these Migrants were brought to the United States as children and have adapted entirely to the American culture, language, and traditions. Many Migrants have established their lives in this country and removal would be detrimental. To protect this youth group, DACA benefits Migrants that were brought to the United States before the age of 16 years old and have remained in the United States since an initial entry. Eligible Migrants that are granted DACA status may now be able to pursue legal educational and employment opportunities while residing in the United States.

DACA was announced on June 15, 2012, specifying all eligibility requirements related to age, physical and continuous presence in the United States as well as educational enrollment and criminal history. Unfortunately, any Migrant (without lawful status) who was not physically present in the United States and was above the age of 31 on June 15, 2012, is not eligible for DACA.

DACA has undergone significant drawbacks over the course of the years, impacting the application and adjudication process. Based on the current administration, DACA applications may be filed with U.S. Citizenship and Immigration Services (USCIS). However, they cannot be processed or adjudicated while a current Texas court appeal is pending to determine if the DACA program is deemed constitutional. On the contrary, any Migrant that was previously granted DACA status, may continue to renew and file joint applications for DACA and employment authorization status.

Should the immigration law change and USCIS resume adjudication of all initial applications, USCIS will follow a strict review process. It is important to note that Migrants must file an abundance of evidence to support a DACA claim. During the review process, USCIS may issue a Request for Evidence (RFE) and/or a Notice of Action (NOA) should there be insufficient evidence to meet the requirements. USCIS may also issue a Notice of Intent to Deny (NID) and/or a Denial Notice, should the Migrant not meet DACA requirements. If approved, USCIS will issue two receipt notices for DACA, and an Employment Authorization Document (EAD). Both approved statuses will have a 2-year validity period.

Based on the current Biden administration, renewal applications are being accepted and adjudicated. A renewal filing does not require the submission of all initial documentation related to educational and/or physical presence as of June 15, 2012. However, it may be recommended for the Migrant to submit documentation to support a financial need to have an EAD renewed, evidence of continuous physical presence over the course of a 2-year period as well as any criminal charges/convictions imposed following the previously approved DACA status.

Benefits

Only the Migrant that has been granted DACA status obtains temporary protection from deportation. However, the Migrant must comply with periodic renewals to maintain DACA status as well as a valid employment authorization document. In most cases, the Migrant will obtain DACA status and an employment authorization document valid for a period of 2 years. USCIS recommends for Migrants to apply for renewal at least 120 days prior to the EAD’s expiration date to ensure that a new card is produced in time before the current one expires.

Migrants granted an employment authorization document are also granted a social security number. Both benefits allow the Migrant to seek educational and employment opportunities while residing in the United States. As DACA recipients, Migrants may also be eligible to request for a Travel Document (Advance Parole) and be permitted to travel abroad during a specified period. Migrants are required to apply for authorization to travel under the basis of humanitarian, educational or employment purposes and provide supporting evidence accordingly. It is important to note that a granted Travel Document does not guarantee entry into the United States. Customs and Border Protection (CBP) officers at a port of entry may deny entry if the Migrant is believed to be inadmissible. It is best for the Migrant to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish the best course of action under DACA status.

Derivative Dependents

DACA status is only granted to eligible applicants. Unfortunately, the Migrant’s derivative dependents cannot be included as part of a DACA application. DACA adheres to strict eligibility requirements and the Migrant must meet all requirements in order to be granted DACA status. Each eligible Migrant must apply independently to qualify for DACA status. Failure to meet and comply with all requirements will result in the denial of any application.

Process Description

Unfortunately, USCIS is not accepting any initial applications at this moment. Only DACA and EAD application renewals are acceptable under the current administration. The DACA and EAD renewal process varies depending on USCIS Service Center’s internal policies for handling DACA and EAD applications. Migrants are encouraged to visit USCIS’ website to obtain up-to-date estimated case processing times.

Unfavorable Circumstances

DACA is a complex process to navigate through due to the strict requirements and criminal conviction bar. Past or present criminal history may negatively impact a DACA status decision. Migrants with felony convictions or significant misdemeanor convictions may not be eligible for DACA and may be subject to denial. DACA’s criminal conviction bar permits USCIS to use discretion when determining a significant misdemeanor based on its nature and/or the Migrant’s punishable jail time sentence. However, there are crimes that are automatically deemed significant misdemeanors including those related to domestic violence, sexual abuse, drug trafficking, Driving Under the Influence (DUI) of alcohol or drugs, etc. Although some factors may not necessarily cause the denial, it is best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish the best course of action. A licensed attorney may be able to assess the Migrant’s circumstances according to the law, criminal bar, and restrictions.

Relevant Links List

Citations

DACA applications are processed and adjudicated under complex and strict eligibility requirements. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable laws and regulations include:

Citations List

Related Forms List

Supporting Documents

An initial DACA and EAD application must generally be supported by documentation that establishes all DACA requirements based on the Migrant’s age, residency, admission as well as educational and criminal history. Some of the required supporting documentation may include:

Supporting Documents List