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As many as 1.7 million immigrants came to the United States as children and currently have no valid immigration status.  Many of these individuals have finished high school, graduated college, or enlisted in the military, yet are not legally authorized to live or work in the United States. Since 2001, certain members of Congress have tried to change the law to provide a path to permanent residency for these immigrants.  That has not worked.  So, in 2012 President Obama used his executive authority to give these individuals authorization to work in the U.S. and to provide temporary protection from deportation.Later, the president expanded the Deferred Action for Childhood Arrivals program to include roughly 400,000 more immigrants.  That portion of the program — the expansion — is currently tied up in court.  This article explains the deferred action program and discusses eligibility.

What Is Deferred Action for Childhood Arrivals?

Deferred Action for Childhood Arrivals (DACA) conveys no immigration status.  Rather, it is an executive immigration policy that allows certain individuals to receive a renewable two-year work permit, a valid Social Security number, and temporary deferral from deportation.  It does not provide a path to legal permanent residency or U.S. citizenship.To apply for DACA, individuals must submit several forms, pay a $465 filing fee, and provide documentation that proves they are eligible for the program.

Do I Qualify for DACA?

There is (1) an initial phase of DACA that applies to certain immigrants and (2) an expansion of the program that applies to a larger group of immigrants.  As noted, the expansion is currently not in effect.  That issue regarding the expansion will be discussed in greater detail below.To be eligible for action under the initial grant of DACA, a person must have:

  1. Come to the U.S. prior to his or her 16th birthday;
  2. Lived continuously in the U.S. since June 15, 2007;
  3. Been 30 years old or younger on June 15, 2012;
  4. Been physically present in the U.S. on June 15, 2012 and when filing for DACA;
  5. Had no lawful immigration status on June 15, 2012;
  6. Completed high school or received a GED, have been honorably discharged from the armed services, OR be enrolled in school; and
  7. Not been convicted of a felony, certain misdemeanors, or be a threat to national security.

When applying for DACA, you will have to affirmatively prove that you meet the above qualifications.  To do that, you should compile supporting documentation that proves you meet each area.  This documentation will be filed with your application, but it will also be used by your attorney to determine eligibility for DACA.

  • Physical Presence – Prepare a list of every place you have lived since entering the United States. To supplement this list, you will need to provide copies of rental leases, mortgage documentation, utility bills, school records, etc.
  • Age Documentation  -Obtain an original or certified copy of your birth certificate. Make sure that you have the long-form birth record that identifies your parents, place of birth, registration information, etc.  Also, obtain a certified translation of your birth certificate if it is in any language other than English.
  • Lack of Immigration Status – Prepare a complete and accurate record of your U.S. immigration history. This should include current and expired passports, visas, I-94 admission records, Notices of Action, and any other immigration documentation.  You also want to estimate as accurately as possible any dates of entry to and exit from the United States.  Additionally, try to recall and document any encounters you had in the past with U.S. immigration officials, consular officers, border agents, immigration judges, etc.  You will want to discuss these events with your attorney prior to filing an application for DACA.
  • Education and/or Military Records – Collect copies of your school records. This should include attendance records, report cards, diplomas, transcripts, etc.  If you were awarded a GED, obtain a copy of the certificate.  If you were a member of the armed forces, obtain your service record, including your discharge certificate. If you are not present in school for GED or English Second Language classes and otherwise qualify for this program, sign up for a qualifying program today!
  • Criminal Records – Completely document any run-ins you have had with law enforcement in the United States, in your home country, and anywhere else. This should include documentation for any criminal offenses in which you were questioned, arrested, charged, or convicted.  Be sure to include any deferred judgments, expunged cases, plea deals, etc.  You should also obtain records of motor vehicle infractions, especially if you have been cited for driving under the influence of drugs or alcohol.  You should be certain to disclose and discuss all criminal and serious civil issues with your attorney prior to filing an application for DACA.

DACA is granted for a period of two years.  Applications to extend DACA should be filed between 180 and 150 days prior to expiration.

Remember:  DACA Expansion Is NOT Yet in Effect

Because of the success of the initial DACA program, President Obama announced an expansion to the program to those who entered the U.S. before 2010 and to eliminate the requirement that applicants be younger than 31.  Due to a lawsuit, the expansion has not yet gone into effect.  Only those individuals outlined above may currently apply for DACA.

In April, the U.S. Supreme Court heard arguments on the legality of the DACA expansion.  A decision on that case is due late in June.  The initial DACA, though, is not affected by this litigation.  Those eligible under the initial DACA program may apply at any time.

With DACA, Do We Still Need the DREAM Act?

As mentioned, DACA does not confer valid immigration status.  Those who receive deferred action under DACA continue to be unauthorized immigrants.  Removal of these individuals is merely deferred.  Granting a valid immigration status to these individuals will require congressional action.  DACA, of course, is an exclusive action of the executive branch.

That is where the DREAM Act would help.  If approved, the DREAM Act would provide a path to permanent residency for the same immigrants who are eligible for deferred action under DACA.  That said, immigration reform remains a contentious issue politically, making action on the DREAM Act unlikely this year.  This is nothing new.  The DREAM Act was first introduced in 2001 but has yet to gain enough support to become law.  Changes in the makeup of Congress following this year’s election could potentially increase the odds that the DREAM Act and other immigration reform measures might be passed.