What is Deferred Action (DAPA/DACA)?
Announced on November 20, 2014, the new Deferred Action programs give certain noncitizens a limited form of immigration relief. As described below, Deferred Action gives important benefits but it is not a form of legal immigration status.
Deferred Action is an exercise of “prosecutorial discretion.” What does this mean? Have you ever been pulled over for speeding but walked away without a ticket? The officer may have decided to exercise “discretion.” This means that even though the officer could have given you a ticket, she decided for some reason that you didn’t deserve it – maybe you were on your way to school. Deferred Action is like that. The immigration authorities could deport an individual, but they exercise their discretion and choose not to. For this group of individuals, it was decided they simply do not deserve to be deported.
In the U.S. government, Congress makes laws and the Executive Branch – headed by the President – enforces those laws. Only Congress can create a law that gives legal immigration status to noncitizens. But the President can decide how to enforce existing law. Deferred Action is the result of President Obama’s decision about how he wants to enforce immigration law. He has decided that certain individuals – those who are eligible for Deferred Action – are a very low priority for deportation, even though he could deport them if he wanted. Deferred Action is the President’s way of identifying certain young people who are such a low priority for deportation that they deserve reassurance they will not be deported at all.
What are the benefits of DAPA/DACA?
If you receive Deferred Action you will receive work authorization. Deferred Action will be granted for three years, after which you will need to reapply or seek another immigration solution. Those who qualify for Deferred Action also: (1) receive a promise they will not be deported; (2) get the ability to apply for a Social Security card; and (3) are no longer considered to be “unlawfully present” for the period they are in DACA.
What are the risks of DAPA/DACA?
Before submitting your Deferred Action application it is important to weigh these considerations:
- Deferred Action is not a law passed by congress. For this reason, a future U.S. president could decide – for any reason – to take away the benefits under this program. It is also possible that individuals who received Deferred Action benefits could be referred for deportation/removal.
- Deferred Action is a form of discretionary relief. This means that even if an individual meets the requirements, the immigration service can still decide to deny the application. There is no way to appeal that denial.
- Deferred Action does not give you legal immigration status – it is not a green card and does not provide a way to apply for citizenship.
- Deferred Action does not solve your unlawful presence in the U.S. for immigration purposes. If you receive Deferred Action your period in the program will be considered lawful presence, but other periods of unlawful presence will still be on your record.
- If you receive Deferred Action it is good for two years, then you need to renew it. A future U.S. president could decide to take away this option.
- If the immigration service denies a Deferred Action application this decision cannot be appealed.
- You risk deportation if you have lied to immigration authorities or engaged in criminal activity (even if you were never convicted). If this might apply to you do not submit your application without discussing the specific issue with an attorney.
- Do not leave the U.S.! Leaving the U.S. may make it impossible to apply for Deferred Action. Receiving Deferred Action does not authorize you to travel outside the U.S. You should depart the U.S. only if you have separately applied for Advance Parole.
There is concern in some communities that Deferred Action is a trap: that it is an attempt to collect the identities of young people who will later be deported. Most immigration attorneys do not think this is true.
The rules for DACA are changing, and we expect a new court decision soon. Until then individuals may still apply under the old guidelines. The new rules will benefit more people, but those individuals cannot apply until the formal rules are available. This page describes the new eligibility rules.
Basic requirements for DACA 2.0
To successfully apply for DACA under the new guidelines you must meet the following requirements:
- Came to U.S. before 16th birthday;
- Continuous residence in U.S. from at least December 31, 2009 to present;
- Physically present in U.S. both on June 15, 2012 and at time of applying for DACA;
- Either entered without inspection before June 15, 2012 or immigration status had expired by that date;
- Has one of the following: Currently in school; Graduated from high school or obtained certificate of completion from high school; Has obtained a GED certificate; or Honorable discharge from Coast Guard or Armed Forces;
- Has none of the following: Felony conviction; Significant misdemeanor; Three or more non-significant misdemeanors; or Otherwise a “threat to national security or public safety.”
“Currently in school”
To be considered “currently in school” you must be enrolled in one of the following:
- Grade school (elementary school, junior high/middle school, high school, or secondary school;
- Certain job-training programs (education, reading or career training programs (including job training) meant to get you into college/university, job training or a job). An English as a Second Language (ESL) program may qualify if it is meant to get you into higher education, job training or employment;
- GED programs (including programs to obtain high school diploma).
Privately-funded education programs may qualify to meet this DACA requirement, but the program must be legitimate – it must have “demonstrated effectiveness.” USCIS looks at the program’s track record at meeting its goals. Be very cautious of any newly-created program.
Departures from U.S.
To be eligible for DACA you must have lived in the U.S. without interruption from January 1, 2010 to the time you file your application. If you left the U.S. during that time you may be disqualified from DACA. You should consult an attorney or authorized immigration consultant if you left the U.S. after January 1, 2010.
If you left the U.S., but only for a short time, this may be okay. A “brief, casual, and innocent absence” does not necessarily disqualify you. To be considered “brief, casual and innocent,” the absence must meet these requirements:
- Short in time and meant to accomplish some particular purpose;
- Not caused by a deportation order (or order of exclusion or deportation);
- Not because you were granted Voluntary Departure by an immigration court; and
- You did not leave the U.S. to violate the law somewhere else.
Deferred Action for Parents (DAPA)
The November 20, 2014 announcement by President Obama created a completely new Deferred Action program called Deferred Action for Parents (DAPA). The program is available to certain individuals with U.S. citizen or lawful permanent resident (green card holder) children. There are six requirements to qualify for DAPA:
- Currently have a son or daughter who is a U.S. citizen or permanent resident (green card holder);
- Live continuously in the U.S. for at least 5 years (since at least December 31, 2009);
- Be currently in the U.S.;
- Be currently out of legal immigration status;
- Not be considered a high enforcement for deportation (this includes those with criminal issues and who recently violated immigration court orders); and
- Not have other negative factors weighing against them (this has not yet been defined).
A version of this article will appear in Bender's Immigration Bulletin. © Greg McLawsen (2020).…
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