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: June 3, 2020

Update as of 6.18.20: Following the recent Supreme Court decision on DACA, we are currently still awaiting new guidance from USCIS on how they intend to comply with the Court’s ruling. We will update this page as soon as we have analyzed any such new guidance.  In the meantime, please see this DACA Alert with important information regarding the Court’s Ruling.

On June 15, 2012, President Obama created a new policy calling for deferred action for certain undocumented young people who came to the U.S. as children. Applications under the program which is called Deferred Action for Childhood Arrivals (DACA) 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.

Individuals who meet the following criteria can apply for deferred action for childhood arrivals:

  • 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.

DHS will deem as “significant” any misdemeanor involving any of the following, regardless of the sentence imposed:

  • burglary;
  • 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.

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.

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.

A brief interruption in the he 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.

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.

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.)

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.

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.

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.

DACA recipients can only travel outside the U.S. if they apply for and receive advanced parole before they travel. Generally, advanced parole is only granted for humanitarian, educational, or employment reasons. If someone leaves the U.S. without advanced parole being granted or before a decision has been made on their deferred action application, they will not be permitted back into the United States. It is USCIS’ policy, however, to not grant advance parole for DACA recipients. Therefore, even if a DACA recipient does have advance parole on the basis of their DACA status, they should not travel outside the United States. DACA recipients should also not travel outside the contiguous 48 states of the United States due to the presence of CBP 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. Therefore, if you are a DACA recipient, it may be risky for you to 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).

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 deferred action, they may be placed in removal proceedings. Additionally, even if they are granted deferred action, the status is completely discretionary and can be revoked in the future.

Deferred action 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.

***Updated on May 30, 2020***

If you have DACA now, you may renew it. If you had DACA previously, and it has expired, you may renew it now as long as it expired after September 5, 2016. If you have never had DACA, you should not apply.

In 2017, the Acting Secretary of Homeland Security rescinded DACA, which led to a number of lawsuits across the country challenging the action. Plaintiffs allege that the government’s decision to rescind DACA (and its changes to policies governing the use of information provided by DACA applicants) violates the Fifth Amendment to the U.S. Constitution, as well as the Administrative Procedure Act (APA) and common law principles of estoppel.

The Fourth and the Ninth Circuit Courts of Appeal, along with a number of district courts, have 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. A decision is expected in the summer of 2020.

In the meantime, USCIS has issued an update stating they have resumed accepting requests to renew DACA applications. Individuals can still renew DACA if it is going to expire or if it has expired but they cannot apply if they have never been granted deferred action before.

Regardless of the outcome of the Supreme Court decision, we still need legislative action for a permanent solution for Dreamers. 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. We need a clean DREAM Act now!

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 says it 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. The current fee to renew your DACA is $495.

2) My DACA expired or was terminated. Can I file a renewal now?

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request.

If you previously received DACA and your DACA expired before Sept. 5, 2016, you cannot apply to renew. If your DACA was terminated, and you are seeking to renew or apply again at this time, be sure to speak with an immigration attorney before applying.

3) 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. As the fee for DACA application is $495, it might also be a good idea to put some money aside for this purpose.

4) Can I apply for advance parole?

**Currently, the U.S. government is NOT granting advance parole to DACA recipients**

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 Trump administration has asked the Supreme Court to determine whether the President can end DACA. 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.