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The expanded version of Deferred Acton for Childhood Arrivals (DACA version 2) starts February 18, 2015. That will be the FIRST day USCIS will begin accepting DACA applications from the new group of individuals who will now qualify. Let’s recap what deferred action is, who is in DACA I and who will be in DACA II.
What is DACA and what is it not?
Deferred Action is NOT a visa; it is not a green card; it is not US citizenship; it is not amnesty nor legalization. It is a temporary reprieve from being deported or put into deportation proceedings. It is a form of “prosecutorial discretion,” that is, a weighing of the good facts v. the bad facts in order for the enforcement authorities to prioritize how best to spend their limited resources in going after 11 million undocumented individuals. In the case of DACA I and II, the Administration is giving the lowest priority of enforcement to people who came to the US before age 16. Recipients of DACA will not be able to sponsor relatives; they will only get limited travel authorization, but they will be able to work if “economic necessity” is shown. DACA is renewable so long as the President is able to continue the program. There are currently a few lawsuits around the country challenging the DACA program, but these cases are pending and some have been thrown out of court already. Also, some members of Congress are trying to withhold funding of the US Department of Homeland Security, which has other national security functions in addition to immigration, in order to defund DHS from carrying out the DACA program. DACA is not a substitute for Congress doing its job to enact legislation that would deal with the immigration status of the undocumented – who will get to stay and how and who will be in deportation or removal proceedings.
DACA I
President Obama started DACA I in 2012. At the time, over one million applicants were anticipated, but so far, only about 600,000 have applied. The basic requirements are:
- The applicant is under the age of 31 as of June 15, 2012;
- The applicant came to the United States before reaching age 16;
- The applicant has continuously resided in the United States since June 15, 2007, up to the present time;
- The applicant was physically present in the United States on June 15, 2012, and at the time of making the DACA application;
- The applicant had no lawful status on June 15, 2012 (i.e., due to illegal entry without documents, overstaying a visa or other violations of status);
- The applicant is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- The applicant has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and does not otherwise “pose a threat to national security or public safety.”
- The applicant cannot be over 31, as of June 15, 2012 and must be at least 15 years or older to file, unless currently in removal proceedings or has a final removal or voluntary departure order.
For more details, see the USCIS DACA website. Many DACA recipients are already seeking their renewals. DACA I was given out in two-year increments initially, but newly filed cases and renewals should be given out in three year increments now. DACA I continues to be operational at this point in time and people can continue to file in this category.
DACA II – begins February 18, 2015
On November 20, 2014, President Obama announced his Executive Action, a series of memos to improve immigration in light of inaction by Congress. One of those prosecutorial discretion memos expands DACA to a new group of people:
1. It removes the 31 year old age limit at time of filing.
2. It changes the last date of entry to qualify from June 15, 2007 to January 1, 2010.
3. It changes the start date of continuous residence required from June 15, 2007 to January 1, 2010.
4. DACA 2 recipients will receive three years instead of two years of work authorization and deferred action status.
All other requirements will be the same. However, caution is advised because USCIS may come up with some other revised or new policies prior to February 18, 2015. And, any applications for DACA II will be rejected if received at USCIS prior to February 18, 2015. For more information, see this DACA website.
DAPA doesn’t begin until-late May
The other program for the undocumented in President Obama’s Executive Action, Deferred Action for Parent Accountability (DAPA), will involve deferred action to the undocumented parents of US citizen and permanent resident children who were born on or before November 20, 2014. Details of that program do not begin until mid to late May 2015. The parents of this group had to have been in the USA and out of status as of January 1, 2010 and cannot be an “enforcement priority.” We are waiting for further information about this program’s requirements.
Community Events and Outreach
For people who like to do things themselves or get free advice, monitor these websites for upcoming community events in Washington State:
When to get legal advice
Immigration law is very complex. Deferred Action is merely a stop gap measure while waiting for Congress to do something else. There are confidentiality issues with this program as well as the potential of ending up in removal proceedings after living in the shadows for so many years. There is no one-size-fits all advice for every undocumented individual. You may have other immigration options and not know it that can result in a more certain and long term status such as a green card, cancellation of removal, asylum or other status that could be better than deferred action. The only way to know is to consult with an experienced immigration lawyer as many of the community workshops above will focus primarily on deferred action. In particular, though, if you have any of the following problems, you should consult with an attorney:
1. ANY criminal history, even if the charges were dismissed or you were not yet arrested, including any drug abuse, alcoholism or other violations of law including DUIs.
2. Any immigration violations besides illegal entry or visa overstay such as a prior fraud or misrepresentation, false claims to US citizenship, and more; if you are in removal proceedings; if you have an outstanding removal order; if you were ordered deported and re-entered the USA illegally; other removal or exclusion problems.
3. Potential difficulty documenting date of entry, continuous presence, qualifying dates in the USA, education requirements.
4. Any issues involving gang membership, potentially disqualifying relationships with criminal or terrorist organizations, involvement with weapons, foreign militaries, or revolutionary groups.
5. For prospective DAPA applicants, delayed birth certificates for children or other problems regarding proof of their birth date or status in the USA.
6. People who haven’t filed their tax returns; who live only on cash or are homemakers who will have trouble getting documentation.
7. Victims of crimes in the USA. (You may be entitled to a U visa.)
8. Individuals who prefer working with an attorney one-on-one instead of working on their cases alone or in a mass group setting.
9. Individuals who have other potential grounds of legal immigration, pending benefit cases, or have lots of questions or multiple family issues where the workshops may not allocate enough time for your problem.
10. If you or a spouse, child or parent have served in the US military (any branch or reserves) you may have better immigration options.
Our Seattle Immigration Law Firm handles/will handle DACA and DAPA cases. To make an appointment, please call (206)282-2279.
