Developments in Deferred Action for Childhood Arrivals

By Reeves & Associates

Young undocumented immigrants should be aware of a major immigration policy change affecting over I million aliens residing in the United States. This major change was first announced on June 15, 2012 by the Secretary of the Department of Homeland Security (“DHS”) wherein they announced that certain young undocumented immigrants could obtain temporary status and a work authorization/ID card. It is called Deferred Action for Childhood Arrivals (“DACA”).  The process is in place and applications are now being accepted.  Since June 15th, DHS has made important clarifications as to the eligibility requirements and benefits available through DACA.    

Persons may apply for deferred action if they:  arrived in the United States before the age of sixteen; were under 31 years of age on the date of the announcement on June 15, 2012; fell out of lawful status by the time of the announcement; graduated high school, or obtained a GED, or are enrolled in school, or were  honorably discharged veterans of the Coast Guard or U.S. armed forces; resided in the United States continuously since June 15, 2007; and, have no significant criminal history.  An applicant for deferred action can apply for a work authorization and subsequently obtain a social security card and a driver’s license.     

Importantly, in order to obtain a work authorization/ID Card, applicants must prove financial necessity. In fact, a full page has been added to the application to address this issue. The United States Citizenship and Immigration Services (USCIS) has not announced how high a level of proof they will require to meet the economic necessity requirement.  In order to avoid delays in processing or denials of the work authorization, it is best to thoroughly explain and document the necessity.  

Since the June 15th announcement, DHS established the eligibility process requirements and benefits associated with DACA.  Applications will be processed by the USCIS in all cases except those involving detained aliens.  Thus, in the vast majority of cases, the enforcement wing of the U.S. immigration apparatus—ICE—will not be involved.  The information contained in the DACA application will remain confidential for now except that USCIS may refer the information to other law enforcement agencies—including ICE—for purposes other than removal of aliens from the United States.  In that regard, DHS has stated that they will treat any misrepresentations or false documents with the greatest severity.

Examining the eligibility requirements, DHS has stated that “continuous residence” in the U.S. since June 15, 2007 will not be interrupted by brief, casual, and innocent absences from the country.  Many circuit court decisions have discussed the exact meaning of those terms.  As such, a grant of DACA status may depend on the explanation and documentation of any absences. The DHS definition of continuous residence apparently leaves the door open to DACA for applicants who triggered the unlawful presence and unlawful reentry “permanent bar”.  Individuals who do not currently meet the education requirement will be able to enroll in various educational programs in order to qualify.  

USCIS will not automatically grant an application for DACA.  The policy is an exercise of discretion.  Therefore, the applicant will need to show not only that they are statutorily eligible for the benefit but also that they warrant a favorable exercise if discretion. 
USCIS has the absolute authority to deny DACA applications for any reason. Any of the following results are possible after filing:

1. USCIS may deny the application.  There is no appeal or reconsideration.  If it is denied, it may be too late to obtain professional help.

2. The entire application may be rejected. Yes, it can be resubmitted with the essential information required. However, it may not be sent back for several months and the resubmission process may result in a delay of several more months which will result in loss of wages and other opportunities.

3. USCIS may issue what is a called a request for further evidence (RFE). Once again, an applicant may lose up to or more than 1 year of the right to work; mistakes can be costly.

4. If you satisfy USCIS that you are both statutorily eligible and worthy of a favorable exercise of discretion, you will be granted deferred action status and a work authorization/ID card will be issued.

Criminal history is extremely important.  That covers more than just convictions for various crimes.  Arrests and prosecutions in juvenile court can be considered.  While expungements of criminal convictions are usually not recognized in the immigration context, they will be considered for DACA.  Alcohol-related violations will be treated very seriously.  Driving under the influence (“DUI”) is a significant misdemeanor and disqualifying conviction for DACA. “Wet-reckless” or other alcohol involved convictions (or arrests) will be relevant.  However, as stated above, so will the expungement of those convictions upon successful completion of probation.      

DACA applicants may have the ability to travel through advance parole.  However, this benefit is not automatic. DHS has indicated that advance parole will only be given for humanitarian, economic, or educational reasons.  Moreover, the applicant must obtain advance parole before leaving the United States or they will forfeit their eligibility for relief.  In no circumstances, should a DACA applicant or recipient travel without said advance parole document.  

It is important to get this one right. We recommend consulting with an experienced and licensed immigration attorney to ensure success.