Millions of people immigrate to the United States, including children. This country is the only home many of those children have known, yet they are not citizens. Still, enforcing federal immigration laws against young people who arrived here through no choice of their own did not seem like the best use of government resources. In an effort to address this issue, the Department of Homeland Security (DHS) announced Deferred Action for Childhood Arrivals (DACA) in 2012. The program has prevented many young undocumented immigrants from being deported and allowed them to work legally.
Individuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time. This does not mean they have lawful status, but they are considered to be authorized by DHS to be “lawfully present” in the United States for the period of deferred action. During that period, the individual may be eligible for employment authorization if there is a demonstrated economic necessity for employment (requesting an Employment Authorization Document (EAD) requires a separate application process). Deferred action is a use of prosecutorial discretion by DHS, and as such, it can be terminated at any time.
President Obama took executive actions on immigration in November 2014, which included an expansion of DACA. The deferred action period and employment authorization has been extended from two to three years. (It is important to note that if you already have deferred action status, you are not automatically extended; you must apply to renew your deferred action.)
Previously, individuals seeking DACA were required to have been born prior to June 15, 1981, and to have lived in the United States continuously since at least June 15, 2007. Now, applicants for DACA can be any age and have lived in the United States continuously since at least January 1, 2010. The requirement that an individual entered the United States before the age of 16 remains the same. Applicants for DACA must be physically present in the United States and have no lawful status. Anyone convicted of a felony, significant misdemeanor or three or more other misdemeanors, or who poses a threat to national security or public safety is not eligible for DACA. Applicants must currently be in school, have graduated (or obtained a GED) or be an honorably discharged veteran.
If USCIS does not grant DACA, there is no appeal available. Unsuccessful applicants for DACA can request review of their denial if they believe it was based on an administrative error by USCIS, such as using an incorrect address that had been officially changed with the agency or finding that filing fees had not been submitted when payment was, in fact, made.
President Obama’s executive action also created Deferred Action for Parents of Americans and Lawful Permanent Residents (also known as Deferred Action for Parental Accountability or DAPA). Several states have filed lawsuits against the Federal government arguing that DAPA violates the U.S. Constitution federal statutes. A temporary injunction was issued in February 2015 blocking the program from going into effect and the U.S> Supreme Court is currently considering whether the president has the legal authority to take this executive action.
DAPA is intended to be available to an undocumented individual living in the United States who is the parent of a U.S. citizen or lawful permanent resident and who meets specific criteria. The applying parent must have lived in the United States continuously since January 1, 2010, and not be an enforcement priority for removal (such as being a threat to national security and public safety).
In the meantime, if you are considering applying for deferred action under the DACA, you should discuss your situation with an experienced immigration attorney. Contact our office today for a consultation regarding deferred action or any other immigration matter.