Apply for DACA Now or Wait for Legalization?
Apply for Deferred Action for Childhood Arrivals (DACA) or wait for legalization? The answer is simple: It made sense to pursue DACA before S.744 was introduced and it makes even more sense now. S.744 [the Senate’s version of comprehensive immigration reform (CIR)] is a Senate bill; it is NOT law, and it has not been approved by the House of Representatives. Even if S. 744 becomes law, as presently structured, DACA recipients stand to benefit in various ways.
Legalization for DREAMers
Senate Bill 744 would establish three differing pathways to earned legalization for the nation’s undocumented – one for DREAMers, one for agricultural workers, and one for individuals who don’t fit into these two groups. Except for agricultural workers, the legalization process begins with seeking Registered Provisional Immigrant (RPI) status, which is the temporary lawful status the bill would create.
The pathways diverge on the question of when an RPI may seek a green card. Border control improvement provisions set triggers on when RPIs can become permanent residents (“green card").
DREAMers may apply to adjust status to permanent resident (“green card") five years after receiving RPI status. In order to qualify for the bill’s fast track to permanent resident status, DREAMers applicants must: be in Registered Provisional Immigrant (RPI) status for five years; entered the U.S. before the age of 16; graduated from high school or its equivalent; and, unless they get a waiver, show that they pursued either higher education or military service.
Moreover, DREAMers will be able to apply for citizenship immediately upon receiving a green card, whereas other RPIs will have to be green card holders for three years before applying for naturalization.
Legalization for DACA Recipients
Legalization could be faster and easier for DACA recipients. If S. 744 becomes law, it will take DHS many months before it starts accepting applications for RPI status. DHS must implement new rules, after soliciting public comment, design new Forms and procedures, and train its staff and employees.
DACA recipients stand to benefit before other RPI applicants because their application process will likely be different.
DACA recipients may be able to become RPIs without filing new applications because the S. 744 authorizes DHS to grant RPI status to a DACA recipient if the DACA renews his/her DACA application and remains eligible.
DACA recipients may also be able to become permanent residents (“green card") more quickly. S. 744 allows DHS to adopt streamlined procedures for DACA recipients to apply for permanent resident status (“green card"). If DHS chooses to do this, it will make the process to become a permanent resident (“green card") less cumbersome and faster than the process for other DREAMers permanent resident (“green card") applicants.
Legalization could be a lot less expensive for DACA recipients. Legalization under the S. 744 will be expensive. S. 744 involves payment of $2,000 in penalties, and additional USCIS filing fees. But DACA recipients would pay less. DACA recipients may not have to pay the filing fee to receive RPI status. DHS can exempt “defined classes of individuals" from paying the RPI filing fee and specifies DACA recipients for this exemption. In addition, applicants younger than 16, on the date they initially entered the country, which includes all DACA recipients, will not have to pay the $1,000 penalty to receive RPI status.
DREAMers versus DACA Recipients
DACA requirements are more restrictive than S. 744’s DREAM Act provisions.
In general, S. 744’s Dream Act provisions are less restrictive than DACA. DACA is only available to individuals who resided in the United States continuously since June 15, 2007. S. 744’s DREAM Act provisions do not require a similar continuous residence requirement. DACA is limited to individuals who were born on or after June 16, 1981. S. 744’s DREAM Act provisions do not impose an age ceiling.
On the other hand, certain aspects of S. 744’s Dream Act provisions are more onerous than DACA. S. 744’s Dream Act provisions for education or military service requirement are more onerous than the corresponding requirement for DACA applicants. Moreover, S. 744’s Dream Act provisions provide a fast-track to permanent residence is limited to those who either go beyond high school to institutions of higher education or those who serve for four years in the military; whereas, DACA may be granted to persons who go no further in school than high school, or its equivalent.
Note: This information is offered for educational purposes only; and, is not, and should not be considered, legal advice. No attorney-client relationship is created unless we have a signed engagement letter.
Gerald Goulder is a North Carolina immigration lawyer and has been a licensed attorney for 30 years and practices exclusively immigration law for clients throughout North Carolina, the United States and the world. Gerald Goulder has broad experience with family-based permanent residence (“green cards"), employment-based green cards, naturalization and citizenship, employment and work visas like H-1B visas, permanent residence strategies for physicians, and I-9 employment eligibility verification.
Mr. Goulder provides initial consultations in his office and by telephone for a nominal charge. Contact Gerald Goulder through his website ( www.gouldervisa.com) or by phone at (336) 808-1119.