From June 15, 2012, the Deferred Action for Childhood Arrivals (“DACA”), instructs the USCIS, ICE and CBP to exercise Prosecutorial Discretion towards certain illegal aliens, who came to the USA as children. On August 15, 2012, the USCIS made available the application form I-821D for DACA. The application fee is $465 ($380 for the processing and $85 biometrics fee).
This Prosecutorial Discretion, if granted, does not confer on the alien any lawful immigration status, and neither does it entitle such alien to apply for a green card or Naturalization in the USA. The main relief offered by DACA is the two year deferral of removal or deportation such aliens will receive.
To be eligible for DACA, illegal aliens must show that they have:
- been under the age of 31 on June 15, 2012;
- arrived to the United States before reaching their 16th birthday;
- continuously resided in the United States from for the last five years;
- been physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from USCIS;
- entered without inspection before June 15, 2012, or had any lawful immigration status expired on or before June 15, 2012;
- been in school at the time of application, or have already graduated or obtained a certificate of completion from high school, or have obtained a general educational development (GED) certificate, or are an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces;
- not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The prosecutorial discretion will be exercised on a case-by-case basis. The applicants, who should be at least 15 years old at the time of filing, except as described below, will be granted a renewable employment authorization, valid for a period of two years. Due to the recent changes in the Regulations, the DACA beneficiaries are now allowed to travel outside of the USA by applying for an Advance Parole Travel document. The Advance Parole allows a DACA beneficiary to seek authorization to re-enter, or be paroled, into the United States prior to his or her departure from the United States. An additional application form with filing fees should be filed with the USCIS to obtain such an Advance Parole Travel document. The Advance Parole Travel Document will then be incorporated within the Employment Authorization Card.
DACA applicants will not be placed in Removal Proceedings, or removed or deported from the USA. Persons, who already have cases, pending with the Executive Office for Immigration Review will also be identified, and offered Deferred action. Persons, who are currently in Removal Proceedings or have been ordered removed, or were granted Voluntary Departure are still eligible for deferred action under DACA. Such aliens do not have to have reached the age of 15 to be eligible.
The following Supporting Documents must be presented with the application, to establish physical presence and continuous residence in the USA:
- Proof of Identity from the Alien’s country of origin, with photo identification. Any number of various official documents can be used.
- Birth certificate
- A U.S. visa, bearing the alien’s name and photo
Proof of entry prior to the 16th birthday:
- Official Records of Arrival into the USA (stamped passport, I-94 form, any paperwork, issued by the INS or the US CIS or other)
- U. S. School records
- Hospital or medical records (such as immunization records).
Proof of immigration status:
- Form I-94, or I-95, or I-94W with place, date and manner of entry and authorized stay expiration date.
- Final immigration Court Order of exclusion, deportation, or removal issued on or before June 15, 2012.
- A charging document (Notice to Appear, Order to Show Cause) placing the alien into removal proceedings.
Proof of continuous residence in the U.S. since June 15, 2007:
- Employment records or letters from employer
- Official school records (report cards, etc.)
- Military records
- Official Religious Institution records of participation in religious observances
- Birth Certificate of U.S.-born children
- Deeds, mortgages, rental agreements, Bank and Credit Card statements.
- Income tax returns
Proof of Completed Education or valid Student Status when filing for DACA:
- School records, showing the dates of attendance in the United States, on the school official stationery, and the up-to date level of education
- U.S. High School Diploma
- U.S. GED Certificate
The goal of the DACA initiative was to encourage young undocumented immigrants to come forth and join their peers on the road to less restrictive and more productive and freer lives.