Deferred Action for Childhood Arrivals (DACA)
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
Last updated: August 30, 2020
I. Legal Challenges to DACA
In 2017, the Acting Secretary of Homeland Security rescinded the Deferred Action Childhood Arrivals (DACA) program, which led to a number of lawsuits across the country challenging the rescission. The Fourth and the Ninth Circuit Courts of Appeal, along with a number of district courts, ruled that the decision to rescind DACA was “arbitrary and capricious,” and therefore unlawful. The Ninth Circuit also upheld a nationwide preliminary injunction halting the repeal of DACA. The government petitioned the Supreme Court, which granted certiorari to hear the case. Oral arguments were heard by the Court on November 12, 2019.
On June 18, 2020, in Department of Homeland Security v. Regents of University of California,the U.S. Supreme Court struck down the Trump administration’s termination of the DACA program. Just as the lower courts had found, the Supreme Court held that the termination of DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). Notably, the Court did not rule on whether or not DACA itself is lawful, but merely held that the Trump administration did not follow the law when it tried to terminate the program. This decision was enforced a month later in Casa de Maryland v. U.S. Department of Homeland Security, in which a federal judge in the U.S. District Court of Maryland ordered the Department of Homeland Security (DHS) to reinstate the DACA program to its 2017, pre-termination status and to start accepting new applications.
II. Current State of DACA
In response to the Supreme Court decision, memos were issued on July 28, 2020, and August 21, 2020, implementing the Supreme Court decision and clarifying how the government will process DACA applications going forward, namely, DHS will:
- Reject all initial DACA applications and associated Employment Authorization (EAD) applications;
- Reject all Advance Parole applications from DACA recipients unless there are exceptional circumstances; and
- Continue to accept DACA renewal applications, but shorten the renewal period from two years to one year.
This means that USCIS will not accept anyapplications from first-time applicants who have never had DACA before. However, applicants can still submit a DACA renewal application if the applicant has ever had DACA, currently has DACA, or had DACA that was terminated, so long as the applicant is still eligible. Generally, submitting a DACA renewal application is a relatively simple process that requires submission of the application packet and a copy of the applicant’s work permit. However, if an applicant’s DACA expired more than a year ago, the applicant will have to include all evidence as if they are applying for the first time. More information on filing is included below.
The cost for a DACA renewal at the time of this publication was $495, which will have to be paid yearly. This means that DACA recipients will essentially be paying $990 for having DACA for two years (a significant increase over the previous fee).
Please note that these new DHS regulations are temporary, as the agency is still considering whether DACA will remain effective or if DHS will again try to rescind it. Please refer to the USCIS Website for up-to-date information.
Ultimately, the best solution for all DACA recipients or Dreamers is for Congress to pass bipartisan legislation granting Dreamers permanent legal status. The Immigration Equality Action Fund will continue to lobby Congress to demand that they pass the DREAM Act, a bipartisan bill that would provide DACA recipients and other similarly situated young people a pathway to citizenship. To sign up for alerts or to take action in support of our lobbying efforts, click here.
III. ELIGIBILITY CRITERIA FOR DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)
a. What is DACA?
On June 15, 2012, President Obama created a policy called Deferred Action for Childhood Arrivals (DACA), calling for deferred action for certain undocumented young people who came to the U.S. as children. Applications under the program began on August 15, 2012.
Deferred action is a discretionary, limited immigration benefit by DHS. It can be granted to individuals who have never been in removal proceedings, are currently in removal proceedings, or who have final orders of removal. Individuals who have deferred action can apply for employment authorization and are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or to citizenship. And, it can be revoked at any time. As noted in Section I above there are limitations that have been placed on DACA eligibility.
Individuals must meet following criteria to apply for DACA:
- Are under 31 years of age as of June 15, 2012;
- Came to the U.S. while under the age of 16;
- Have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five-year period, brief absences from the United States for humanitarian reasons will not be included);
- Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
- Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
- Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
- Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors of any kind; and
- Do not pose a threat to national security or public safety.
Applicants will have to provide substantial documentary evidence of the above criteria. In addition, every applicant must complete and pass a biographic and biometric background check.
IV. SPECIAL CONSIDERATIONS
a. Criminal Conviction
DHS will deem as “significant” any misdemeanor involving any of the following, regardless of the sentence imposed:
- domestic violence;
- sexual abuse or exploitation;
- unlawful possession of firearms;
- driving under the influence; or
- drug distribution or trafficking.
In addition, any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to an immigration detainer, will be deemed a significant misdemeanor.
b. Age Requirements
Generally, in order to apply for DACA, an applicant must be at least 15 years of age at the time they apply. The exception to this rule is if the applicant is in removal proceedings, has a final order of removal or has an order of voluntary departure. If so, they can seek DACA even if they are below the age of 15.
If the applicant was 31 years of age or older as of June 15, 2012 they are not eligible for DACA.
c. “Currently in School”
If an applicant is not currently in school, but would like to re-enroll in high school, they could still qualify for DACA. To be considered “currently in school”, USCIS will look to whether the applicant is enrolled at the time they submit the application. Many kinds of educational institutions or programs may be sufficient to meet the “school” requirement. The following information is pasted directly from the USCIS website:
To be considered “currently in school” under the guidelines, you must be enrolled in:
- a public or private elementary school, junior high or middle school, high school, or secondary school;
- an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement;
- or an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.
d. Interrupted Stay in the U.S.
A brief interruption in the requirement to be in the U.S. continuously from June 15, 2007 to July 15, 2012 will not affect an applicant’s eligibility for deferred action if the absences from the U.S. are brief, casual, and innocent. Absences will be considered to be brief, casual and innocent if:
- it was before August 15, 2012;
- it was short and reasonably calculated to accomplish the purpose of the absence;
- it was not because of an order of exclusion, deportation or removal;
- it was not because of an order of voluntary departure, or an administrative grant of voluntary departure before an applicant was placed in removal expulsion, deportation or removal proceedings;
- the purpose of the absence, or an applicant’s actions while outside of the U.S., were not contrary to law.
V. APPLICATION AND FILING FEE
All applications for deferred action should be submitted directly to USCIS on Form I-821D. Even if an applicant is in removal proceedings or has been ordered removed, the application still goes to USCIS. If the applicant is detained, then they should alert their detention officer that they want to apply.
a. Forms and Evidentiary Documentation
In order to apply for DACA, applicants must submit the following forms or their application will be returned to them:
- Form I-821D Consideration of Deferred Action for Childhood Arrivals;
- Form I-765 Application for Employment Authorization Document;
- Form I-765 WS –EAD economic need supplement form
- Additionally, applicants will need to submit documentary evidence that they meet all of the criteria to qualify for deferred action (age; entry date; continuous presence; educational or military documentation; etc.)
- Application fees as listed on www.uscis.gov.
In order to prove the physical presence requirement, substantial evidence must be submitted. You should try to submit at least one proof for every month.
b. Filing Fee
It is recommended to visit the USCIS website for the most recent information regarding the filing fee for DACA. There is no fee waiver available for DACA. However, there may be a fee exemption under very limited circumstances for individuals who are in foster care, are disabled, or have medical-care-related debt and whose income is below 150% of the poverty level.
VI. EMPLOYMENT AUTHORIZATION DOCUMENT (EAD)
Currently, USCIS is not accepting initial Employment Authorization Document requests under DACA and renewals are limited to a period of one year, until further notice.
Every individual who is granted deferred action will be lawfully permitted to work. However, in order to be permitted to work, applicants must include an application for an Employment Authorization Document (EAD) in their application, which, when granted, will be valid for a period of two years and may be renewed. Applicants must wait until the EAD is issued prior to beginning employment.
It is important to note that the grant of deferred action does not grant lawful immigration status to an applicant. In addition, it does not cure the applicant’s previous periods of unlawful presence. However, an applicant who is granted deferred action will not be deemed to be accruing unlawful presence in the U.S. during the time period when deferred action is in effect.
VII. ADVANCED PAROLE
Currently, USCIS is not accepting new or pending advanced parole requests except under very rare, extraordinary circumstances.
DACA recipients can only travel outside the U.S. if they apply for and receive advanced parole before they travel. If someone leaves the country without advanced parole being granted they will not be permitted back into the United States. Currently, however, USCIS is only granting advanced parole requests from DACA recipients in very rare instances for exceptional circumstances. Moreover, even if you have advance parole, you will be inspected at the border when you return, and there is always a possibility that you could be denied entry. Therefore, even if a DACA recipient has advance parole on the basis of their DACA status, they should not travel outside the United States. Also, DACA recipients should not travel outside the contiguous 48 states of the United States due to the presence of Customs and Border Patrol at airports. While all U.S. territories, Alaska, and Hawaii are indisputably part of the United States, ICE has begun to police them as though they were foreign jurisdictions and you may be detained or denied entry. Therefore, if you are a DACA recipient, you should not travel to or from a U.S. territory, Alaska, or Hawaii.
A denial of an application for deferred action cannot be appealed. However, the applicant could file again (and pay the fee again).
IX. ALWAYS SEEK LEGAL ADVICE
Note that it may be risky to apply for DACA. Individuals should only apply after consulting with a qualified attorney. If an individual is here unlawfully and USCIS or ICE finds that they do not meet the criteria for DACA, they may be placed in removal proceedings. Additionally, even if they are granted DACA, the status is completely discretionary and can be revoked in the future.
DACA is only a temporary measure and is not intended to, and does not grant, legal status to the individuals that the DREAM Act seeks to benefit. Given that only Congress can confer the right to lawful permanent resident status or citizenship, it is essential that we continue to work towards the passage of the DREAM Act.
As we learn more from USCIS we will post more information here. If you have specific questions about whether you qualify, please use the contact us page on our website to submit your question. There is also useful information on the USCIS site.
FREQUENTLY ASKED QUESTIONS (FAQs)
Many of you have contacted Immigration Equality to ask “what do I do now?” Below, you will find our frequently asked DACA questions.
1) I currently have DACA and it will expire in the next 6 months. Can I renew my DACA?
Yes. The government has resumed DACA renewals – at least for now. You can apply if your DACA is expiring within the next 6 months (180 days) and if you are in the same legal position as you were when you filed your original DACA application. However, if you have been arrested, charged with a crime, convicted of a crime, or accused of violating immigration laws in some way, you should consult with an attorney before filing your renewal application. USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. You should file your request between 150 and 120 days before your current grant of DACA expires.
2) Can I apply for DACA for the first time ever now?
No. USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA.
If you would have been eligible to apply for DACA but now cannot apply, it may be a good idea to gather the relevant documents, in case of a change in policy. This includes evidence of physical presence in the United States, education or work history, community involvement and family relationships.
4) Can I apply for advance parole?
Currently, USCIS is only granting advanced parole requests from DACA recipients in very rare instances for exceptional circumstances, such as:
- Travel to support the national security interests of the United States;
- Travel to support U.S. federal law enforcement interests;
- Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or
- Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.
Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.
Moreover, even if you have advance parole, you will be inspected at the border when you return, and there is always a possibility that you could be denied entry. Therefore, even if a DACA recipient has advance parole on the basis of their DACA status, they should not travel outside the United States. Also, DACA recipients should not travel outside the contiguous 48 states of the United States due to the presence of Customs and Border Patrol at airports. While all U.S. territories, Alaska, and Hawaii are indisputably part of the United States, ICE has begun to police them as though they were foreign jurisdictions and you may be detained or denied entry. Therefore, if you are a DACA recipient, you should not travel to or from a U.S. territory, Alaska, or Hawaii.
5) I want to renew, but I’m afraid about what will happen in the future. What if the Trump administration is successful in overturning the judge’s ruling?
As mentioned above, the United States Supreme Court stated the Trump administration did have the authority to terminate DACA, but it needed to follow the proper administrative procedures in order to so. Because there is a possibility that DACA may end in the near future, we encourage applicants who are eligible to renew right away. If DACA does end, it may be that those with DACA at the time of the end of the program will be allowed to stay in that status until it expires. We always recommend that an applicant speak with an attorney first before applying but even more so for those individuals who have complicated immigration histories or who have had run-ins with the law.
6) I want to apply and I am otherwise eligible I but have a criminal history that might affect my claim. Should I apply?
We recommend you speak with an immigration attorney regarding your case and your criminal history. Your legal representative should advise you on the potential consequences your criminal history may have on your eligibility for DACA. We strongly discourage anyone with a criminal history from applying for DACA unless you speak to a legal representative first. This is true even if you have DACA and are considering renewing your status.
7) I provided the U.S. Citizenship and Immigration Services with my address when I applied for DACA. How likely is it that ICE agents are going to come to my home?
While the President has indicated that individuals who had DACA will not be a priority for deportation, he has in fact deported DACA recipients and his general emphasis on deportations should be taken seriously. For as long as you live at an address known by the immigration agents, you may be at risk. Please read our know your rights advice on how you can stay safe.
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.Visit