Deferred Action for Childhood Arrivals (DACA)

GENERAL REQUIREMENTS

On June 15, 2012, the President announced the creation of the Deferred Action for Childhood Arrivals (DACA) which is a temporary immigration status granted by the US Citizenship and Immigration Service (USCIS) for individuals who came to the US as children and meet other key guidelines. DACA is a case-by-case discretionary act on the part of the USCIS and may be terminated at any time. Under the revised guidelines from the November 20, 2014 Executive Order, which will be effective on February 18, 2015, you may qualify for DACA if you:

  1. Came to the United States before reaching your 16th birthday;
  2. Have continuously resided in the United States since January 1, 2010, up to the present time;
  3. Were physically present in the United States on November 20, 2014, and at the time of making your request for consideration of deferred action with USCIS;
  4. Had no lawful status on June 15, 2012, meaning that:
    1. You never had a lawful immigration status on or before June 15, 2012, or
    2. Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012;
  5. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  6. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Furthermore, the Executive Order expanded the duration of the work permits issued under DACA effective November 24, 2014 from 2 years to 3 years.

PROVING PRESENCE IN THE US

In order to qualify for the DACA, you will need proof that you came to the U.S. before age 16 and you will need proof that you were here on or before Jan. 1, 2010. Possible items to show this include:

  • Medical Records
  • School Records
  • To meet the DACA education requirement, you will need proof that you graduated high school (by either a transcript, high school diploma) or have your GED. If you haven’t graduated high school or received a GED, you can likely qualify if you are currently enrolled in an educational program.
  • Employment records
  • Letters Sent to You Here
  • Bills/Rent Receipts in Your Name
  • An Entry Stamp in Your Passport
  • Bank/Credit Card Statements
  • Tax Returns

CRIMINAL CONVICTIONS

You should review your criminal record, if any. If you have been convicted of a felony, a “significant misdemeanor”, three or more other misdemeanors, you will not qualify for DACA.

We recommend that if you have a criminal conviction that you consider expunging it, if possible. For more information on expungment, click here.

For the purposes of this discussion, the following definitions apply:

  1. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
  2. A significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
    1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
    2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
    The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). The Department of Homeland Security (DHS) retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.
  3. A nonsignificant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
    1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
    2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE.

Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

However, there are some important caveats:

  1. Expunged convictions and juvenile convictions will not automatically disqualify you. Your petition will be examined on a cases-by-case basis.
  2. A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.
  3. Immigration-related offenses characterized as felonies under state laws will not disqualify the applicant.