Last summer, President Obama signed a policy memo directing the United States Citizenship and Immigration Services (USCIS) to provide relief from removal for young people living in the U.S. without status. This new policy provides relieffor young adults and teenagers who are in the country, are pursuing or have pursued an education or military service, and who have no serious criminal record. The eligibility criteria appear straightforward, but in application, they are very technical and extremely fact specific.
All applicants must provide a substantial amount of evidence for each of the required eligibility criteria. Even if the criteria are met, there is no guarantee that the applicant will be granted deferred action. This is because it is a form of ‘prosecutorial discretion’- a decision not to pursue someone even though the law allows that person to be pursued legally. Another example of discretion is a police officer giving a driver a warning instead of a speeding ticket.
DACA can be granted to individuals who are in removal proceedings, who have final orders of removal, or who have never been in removal proceedings. Individuals granted ‘deferred action’ can apply for employment authorization, which may give them access to benefits and driver’s licenses in most states. This is crucial to many families struggling to find work and to support themselves without an immigration status.Keep in mind that deferred action is not a status or a permanent fix. It simply means that the government will leave you alone for two years. Persons granted DACA can request a renewal after the initial two years.
The Department of Homeland Security reserves the right to change the rules governing DACA and can act despite USCIS granting DACA. However, we fully anticipate that it will provide significant protection from removal (deportation) to those who receive it. We strongly advise that you consult with one of our attorneys when considering an application for DACA.
ELIGIBILITY CRITERIA FOR DACA
- Are under 31 years of age as of June 15, 2012;
- Came to the U.S. while under the age of 16;
- Have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five year period, brief and innocent absences from the United States for humanitarian reasons will not be included);
- Entered the U.S. without inspection before June 15, 2012, or individuals whose lawful immigration status expired as of June 15, 2012;
- Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
- Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
- Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety.