Update ! September 5th, 2017
The following announcement is directly from the USCIS website concerning today’s very unfortunate and unfair decision regarding DACA by the Trump Administration. .
“Deferred Action for Childhood Arrivals 2017 Announcement
On Sept. 5, 2017, the Department of Homeland Security (DHS) initiated the orderly phase out of the program known as Deferred Action for Childhood Arrivals (DACA). DHS will provide a limited, six-month window during which it will consider certain requests for DACA and applications for work authorization, under specific parame…ters. Read the memorandum from Acting DHS Secretary Elaine Duke for details.
Next Steps for Phasing Out DACA
All DACA benefits are provided on a two-year basis, so individuals who currently have DACA will be allowed to retain both DACA and their work authorizations (EADs) until they expire.
USCIS will adjudicate, on an individual, case by case basis:
Properly filed pending DACA initial requests and associated applications for employment authorization documents (EADs) that have been accepted as of Sept. 5, 2017.
Properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of the date of this memorandum, and from current beneficiaries whose benefits will expire between Sept. 5, 2017 and March 5, 2018 that have been accepted as of Oct. 5, 2017.
Individuals who have not submitted an application by Sept. 5, for an initial request under DACA may no longer apply. USCIS will reject all applications for initial requests received after Sept. 5.”
This is a confusing area for many people. The DREAM Act is potential legislation that must be passed by Congress and signed by the President into law whereas DACA is an Executive Order recently signed by President Obama in June 2012.
The DREAM Act (acronym for Development, Relief, and Education for Alien Minors) has been stalemated in Congress for quite some time, which is why the President has attempted to address some of these issues through his Executive Order. Both are designed to let people illegally residing in the United States to get their work authorizations, Social Security number, and driver’s license. Only the DREAM Act as previously written would enable a green card to be obtained.
DACA (acronym for Deferred Action for Childhood Arrivals), signed on June 15 of 2012, states that the government will not deport those who meet certain criteria, including but not limited to:
- Children who arrived here before the age of 16 and are under 31 years of age on June 15, 2012
- Individuals who are in school or possess a high school diploma
- Applicants who have lived here for at least five years
- People who have not committed serious crimes
Meeting these criteria will allow undocumented residents to obtain a driver’s license and Social Security number and a 2 year work authorization. They will be permitted to renew the employment authorization at the end of those two years…hopefully. In two years, there might be a new president that decides he does not want to renew DACA. That is largely a political question. Other potential challenges loom at the state level, where seven governors have already said that they will refuse to issue driver’s licenses under DACA.
The first step for people seeking protection under DACA is to gather their materials:
- Proof of attending High School including diplomas, transcripts and a letter from the school
- Medical records
- Bank records
- Tax records
- Rental lease
- Bills proving residence in the U.S. for the last five years – specifically between June 2007 and June 2012.
- Birth certificate and passport to show proof of age.
It is the hope of many that the deferred action program will be successful and serve to convince Congress to pass the DREAM Act.
If you have questions about DACA and would like to speak to the attorney. Please call 520 261 – 2576 or fill out the contact form to schedule a meeting with the attorney to discuss specifics about your situation.
Should I apply for DACA?
As of February 2nd, 2017 there is a heightened concern surrounding the fate of DACA. Many people who stepped forward and trusted the U.S. government to treat them fairly applied for the DACA program. Now that Trump has been elected, the political landscape has shifted and along with it, the Executive Branch’s priorities. People have a right to be very concerned about the fate they or their relatives face under the DACA program. Nothing concrete has happened yet but anyone considering applying for DACA should be informed of the potential risks. The risks are potentially catastrophic such as deportation. One should really consult with a lawyer to have them examine their individual situation.
Before we move on to the current DACA situation here is a little background on the concept of Deferred Action. Deferred Action is basically a type of prosecutorial discretion. It is not a right or an official immigration benefit. However, it has been a practical benefit for thousands of people and their families, employers, friends and society as whole. Deferred action describes the choice by DHS to not target certain people for deportation. Deferred Action can be granted at any stage of the enforcement process. Normally we think of it as something people apply for before they are picked up and detained. However, it can currently be applied for even during or after removal proceedings. The USCIS and ICE are responsible for the bulk of the deferred action requests.
Surprisingly, deferred action has been around in some form for more than several decades. It once was more of a secret program reserved for attorneys familiar with the program. It was one form of prosecutorial discretion deemed appropriate. The reasons for prosecutorial discretion are usually humanitarian based.
It is vital to remember a couple of things especially now that President Trump will be taking office. First, deferred action does NOT confer a legal status. This is different from lawful presence. Second, Deferred Action is not legislation. It is revocable at any time. It provides only a tenuous safeguard or type of pseudo status, lacks many important legal criteria, provides no independent path to a green card or citizenship, and does not give permission to travel.
Except for the DACA program, traditional deferred action also lacks a form, a fee, or any guarantee that a person who requests it will be notified about its outcome or have the ability to appeal or challenge a decision to deny. In essence deferred action a is a short term protection from deportation. It also, as in DACA, allows someone to work in many cases.
DACA, announced in 2012, basically applies this Deferred Action concept to a category of young people. Under DACA, an individual must first satisfy certain criteria. The legal rationale is that because they were younger than 16 when they entered the country they could generally have been considered to have lacked the intent to break the immigration laws. They would have also have had to have lived in the U.S. continuously since a certain date and been physically present inside the United States on June 15, 2012. There also is an education requirement. An individual is disqualified from DACA if he or she has been convicted of certain crimes or otherwise deemed a threat to national security or public safety. USCIS adjudicates DACA requests on a case by case basis.
Risks of DACA
- Short term risks
Often the worst case scenario has been a denial and cost of the application fee. However for a certain unknown, but probably very small, percentage of applicants with certain criminal backgrounds they have been referred to ICE and other negative consequences. However the general rule, absent criminal history, fraud, threats to national security information provided in a DACA application was not protected from disclosure to ICE and CPB for purposes of immigration enforcement.
Long term Risks
Now that Donald Trump has been elected President the inherent risks of DACA are staring us all in the face. The conduct of his administration is unpredictable as to DACA. However, it does not look good at his point. There has always been a wariness of a Republican President’s effect on DACA. However, President Trump’s stances on immigration makes DACA even more vulnerable. If his openly hostile rhetoric is any indication there is definitely cause for alarm. We just don not know for certain what his administration is going to do.
Historically, the U.S. government has not created a program like DACA and subsequently decided to enforce immigration laws against that population. Think of it as sort of a concept of good faith and fair dealing, gentlemen’s agreement in essence. However, Trump is a new breed of President. We simply do not know what he will do.
On the bright side , those people who qualify for DACA would also normally fit the criteria for low priority targets for deportation due to the fact that they are not a threat to public safety and often have U.S. citizen or L.PR. family members.
Should I Apply for DACA while Trump is President?
Before applying for DACA relief you should exercise extreme caution. You should definitely speak to an attorney before you even think of applying for the first time. Renewals should be treated differently as well. Things are in a state of flux right now and it will be hard to predict what will happen. In addition, everyone’s case or situation is different. This blog post or any other on this site is as not intended as legal advice and should not be taken as such. *
*Leon Wildes, Patrick Taurel, and Shoba Sivaprasad Wadhia, Deferred Action: A Primer AILA Immigration Practice Pointers (2015)