What is Deferred Action for Childhood Arrivals (DACA)?

      Generally, deferred action is prosecutorial discretion in which immigration and customs officials determine to defer, that is to postpone, removal proceedings (formerly known as “deportation”). Deferred action does not award you lawful immigration status, put you on a pathway to lawful status, nor does it forgive you for past violations of U.S. immigration laws. However, deferred action allows for you to obtain employment authorization for the period of the deferred action, as long as you have an economic necessity for employment. Additionally, an individual does not accrue unlawful presence in the United States during the time he or she is granted deferred action, which could otherwise potentially be a factor in removal proceedings. It is also important to note that deferred action is discretionary and can be revoked at any time.

      Deferred Action for Childhood Arrivals (DACA) is a specific type of deferred action, for those who qualify, which was put into effect on August 15, 2012. Pursuant to the President’s Executive Action on immigration from November of 2014, the DACA program has been expanded to include even more individuals and for a longer validity period. However, a preliminary injunction was granted in February of 2015 challenging the Executive Action on immigration on constitutional grounds, which currently prevents the expanded requirements from being implemented. Ultimately, the expanded DACA criteria should be found to be constitutional and implemented, but for now the original DACA criteria control. DACA allows for certain individuals who entered the United States as children, and meet additional guidelines, to request deferred action for a period of three years and then be eligible for employment authorization. Pursuant to current immigration policy, deferred action and the employment authorization may be renewed.

      Essentially, DACA is a temporary reprieve that allows qualifying individuals to work legally and “step out of the shadows.” Although DACA is discretionary and subject to revocation at any time without notice, it is intended to give Congress time to reach a consensus to potentially reform immigration policy in the future. For this reason, DACA is targeted at individuals who would have been provided, or could be provided, a pathway to legal status under the proposed DREAM Act. Thus, as DACA is a temporary reprieve, those who qualify may potentially be granted amnesty and be put on the pathway to lawful immigration status in the future. Keep in mind the future of DACA is still very much uncertain and no one can guarantee what benefits DACA will confer in the future. However, for now, DACA is not an amnesty (it does not forgive past immigration violations), it confers no rights, and does not put an approved applicant on the pathway to lawful status.

Requirements to Qualify for DACA

You may qualify for Deferred Action for Childhood Arrivals if you complete the following guidelines:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before your 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, AND at the time of making their request for Consideration of Deferred Action;
  • Entered without inspection before June 15, 2012 OR your lawful immigration status expired as of June 15, 2012;
  • 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
  • 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.

Proposed Requirements to Qualify for DACA
under the November 2014 Executive Action on Immigration

You may qualify under the expanded criteria for Deferred Action for Childhood Arrivals if you complete the following guidelines:

  • Came to the United States before your 16th birthday;
  • Have continuously resided in the United States since January 1, 2010, up to the present time;
  • Were physically present in the United States on June 15, 2012, AND at the time of making their request for Consideration of Deferred Action;
  • Entered without inspection before June 15, 2012 OR your lawful immigration status expired as of June 15, 2012;
  • 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
  • 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.

Applying for DACA and employment authorization

     To apply for DACA, you must submit a Consideration of Deferred Action for Childhood Arrivals Form (Form I-821D) to USCIS. Form I-821D must be accompanied by an Application for Employment Authorization (Form I-765) and a Form I-765 SW worksheet to establish an economic need of employment. If you do not submit a Form I-765, USCIS will not consider the request for deferred action. The total filing fees that USCIS charges to submit these forms is $465.00. Brown Immigration Law, LLC will charge additional legal fees for legal services rendered.

     When USCIS determines that your file is complete for review, it will send a receipt notice. Then, USCIS will send an appointment notice to visit the Application Support Center (ASC) for biometric services. This is where they will collect data such as biographic information and fingerprints to perform a proper background check. It is important for you to attend the biometrics appointment since failure to show up may delay or jeopardize denial of a request for deferred action. There is even an option to receive an email or text message that provides notification that forms have been accepted. This is done by completing an E-Notification of Application/Petition Acceptance (Form G-1145).

     With your file, you will need to submit copies of supporting documents to prove you qualify for DACA. In gathering your documents, keep in mind that it is your burden to prove each of the DACA elements listed above. Of course any additional evidence that you can gather to prove you meet all of the elements of the guidelines will make your case stronger. Any incomplete or lacking evidence that you submit can delay your application processing or even jeopardize its approval. Since the USCIS has very particular and strict guidelines on the types of evidence it will accept as evidence of each element, we can assist you in putting together the correct documents to make your case as strong as possible.

     USCIS reviews DACA requests on a case-by-case basis and may exercise its discretion in granting or denying an application. It may request additional evidence or even request you to appear at the USCIS office. USCIS notifies the individual in writing if it decides to do so.

Contact information

For any further information or questions in regards to applying for DACA and employment authorization, please feel free to contact Brown Immigration Law, LLC by phone at (402) 328-9899 or via email at reform@brownimmigrationlaw.com.