If you haven't heard the acronym DACA yet, you probably will soon. Here is a brief synopsis of what every attorney should know about DACA, which stands for "Deferred Action for Childhood Arrivals". DACA is a Directive that was first announced on June 15, 2012 and allows applicants to begin applying on August 15, 2012.
** What DACA is**:
- DACA allows the Department of Homeland Security (DHS) to defer removal as an act of prosecutorial discretion on a case-by-case basis for applicants who qualify and apply with the United States Immigration and Citizenship Service (USCIS), and subsequently have their applications approved.
- DACA is expected to last up to two (2) years, with the possibility of extending for an additional time period; however, because DACA is a directive, it is subject to end at any time.
- DACA applicants can concurrently apply for work authorization and may be eligible to obtain an Employment Authorization Document (EAD).
Who is eligible for DACA:
- Must be at least 15 years old to apply (with exceptions for those already in immigration removal proceedings), but must have been under 31 years old as of June 15, 2012;
- Must have arrived in the United States before reaching the age of 16 years old;
- Must have had continuous residence in the United States since June 15, 2007 (brief absences that are found to be brief, casual, innocent, and were reasonably calculated to accomplish the purposes for the absence may be allowed);
- Must have been physically present in the United States on June 15, 2012;
- No travel outside of the United States after August 15, 2012 will be allowed until application is approved, and all travel must be pre-approved by USCIS through an Advanced Parole application (which has different standards than Advanced Parole applications sent by those in the US with lawful presence);
- Must have graduated from high school or have obtained a Certificate of Completion or obtained a GED or are currently enrolled in specified schools, or have been honorably discharged from the US Armed Forces or Coast Guard. USCIS has confirmed that a GED obtained after August 15, 2012 will be accepted;
- Must not have been convicted of any felony or any significant misdemeanor or more than two (2) misdemeanors, or otherwise pose a threat to public safety or national security.
Applicants must provide adequate documentation to prove each and every requirement listed above
with their application and $465 fee.
Fee waivers may be granted, but must be applied for prior to the DACA application, and fee waivers must be approved before DACA application can be submitted.
What DACA is NOT:
- DACA is not a law, it is a policy.
- DACA is not a track to obtaining citizenship, nor does it provide a lawful status to be in the United States or excuse previous unlawful presence in the United States.
- DACA does not provide a way to offer derivative status for relatives.
- DACA is not Amnesty. (Amnesty was a law and notably different in many other ways.)
- There is no possibility to appeal or litigate when a DACA application is not approved; however USCIS has indicated that applicants will likely be able to re-apply, but will have to re-pay additional application fee.
- DACA information will not be shared with other agencies for enforcement purposes, except when an applicant has a disqualifying criminal background.
- There is currently no set deadline for DACA applications.
- There is currently no known application processing time; USCIS has indicated approval will take "several months".
- DACA is not yet completely defined and there are still some procedural and substantive questions remaining, and likely to remain due to the policy's prosecutorial discretion standard.