There are many free resources to help you educate yourself about Deferred Action for Childhood Arrivals (“DACA"), to learn whether you are eligible and how to apply. These resources range from information hubs like United We Dream and the National Immigration Law Center, to short FAQs from the Legal Aid Society on DACA eligibility, the effect of crimes and past travel, and public health insurance, as well as the New York Immigration Coalition’s document checklist, and a comprehensive lawyer practice advisory.
This legal guide offers a few important tips about things you need to know and do first, before you attend a legal service clinic or meet with an immigration lawyer.
Get original Certificates of Disposition for every arrest or summons you have ever had, whether it was an ACD, dismissed, pardoned, youthful offender, juvenile delinquency, open beverage, or fare-beating on public transit. Tell the attorney even if it is a record you cannot now obtain, such as a sealed or expunged conviction. Past offenses that do not count in other settings can have severe, permanent consequences under immigration laws. Whatever it was, make sure you have the Certificate of Disposition in hand so that when you meet with a lawyer, he or she can give you a realistic idea of what may flow from that event, and whether it may be a bar to Deferred Action.
No attorney can counsel you on the effects of conduct they don’t know about, so be honest. Do not guess! Be aware that once you have filed a DACA application, everything in it is known to USCIS, and may be revealed to other agencies as well if they decide that you are a “high enforcement priority." All applicants have to give biometrics – digital fingerprinting and a digital photograph. Fingerprints will be forwarded to a wide array of law enforcement agencies for background checks (not just within the U.S.), and the photo alone is a reason not to file if you have visible gang-related tattoos.
If you have ever been in immigration court, or held resident status and then lost it, or had an Employment Authorization card, or if anyone ever filed papers on your behalf, then you may already have an A#. If any of these apply to you, but you do NOT know your A# or even whether you have one, it may be worth the wait to file a Freedom of Information Act request to find out if you have one. If you know your A#, call the immigration court hotline ( 1-800-898-7180 ) with a pen & paper handy, and enter the A# to see if you are in the system already. If it says there is no record, then you have not been ordered removed, nor had proceedings commenced in your absence.* If there have been any immigration court proceedings against you, then the automated system will spell out your name and give other details. Know this before filing for DACA, as you must disclose it on the forms.
*The A# that appears on a work authorization card begins with a "1" and will not show up in the court system.
If you have ever worked without authorization using a false Social Security Number, do not file for Deferred Action now, even though all the FAQs and document checklists say to include your employment records. The first reason is that using someone else’s SSN could be grounds for denial of your application and issuance of a Notice to Appear, which begins removal proceedings. The second and more serious reason is, it may be treated as a felony false claim to U.S. citizenship, which would bar future immigration benefits such as residence or citizenship. If you have used an SSN for employment, but you are not sure whether it was a made-up number or if it used to be somebody’s real one, err on the side of caution: don’t file now, wait to see how these applicants are treated by USCIS.
Also, if you have not had work authorization, avoid disclosing the names of your present or past employers. USCIS has said that filing a DACA application will not result in enforcement actions against family members of applicants, but they offer no such protections for employers who have hired unauthorized workers. Naming employers could subject them to fines, audits or investigations.
If you did not cross the border on foot, and are not sure how to characterize your entry into the United States, consult the family member who knows the most facts about how you came into the US, and then consult an immigration attorney or legal service provider to help you complete the DACA forms. For instance, if you were driven across the border in a vehicle, it makes a big difference whether you were concealed in the back or sitting on the seat where you could see out the windows. If you came in through an airport with someone else's passport, it makes a difference whether it was a US passport or a foreign passport with a visa.
If you have lived in the U.S. unlawfully for more than a year, and then left voluntarily, and later re-entered the United States illegally, OR if you were previously deported or removed, and then you re-entered the United States illegally, you are subject to a permanent bar, and will be ineligible for residence or citizenship. If one of the permanent bars applies to you, alerting USCIS to your presence through filing a DACA application would be unwise. However, "unlawful presence" is complex, especially for people who entered the U.S. lawfully as students or exchange visitors, so this analysis may require an immigration lawyer.
These are just a few areas in which “forewarned is forearmed." Deferred Action for Childhood Arrivals presents a welcome opportunity and temporary relief for many, but it also poses significant risks. Know the risks to avoid placing yourself and others in harm’s way.
*Like all publications on Deferred Action for Childhood Arrivals, this is a work in progress and may be updated from time to time.