Who Qualifies for Deferred Action as an Immigrant Student or Graduate (DACA)

Temporary protection against deportation, plus a work permit, for certain immigrants who came to the U.S. as youngsters.

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In June of 2012, the Obama administration created a new remedy for young immigrants in the U.S. with no legal status. Called “deferred action for childhood arrivals,” or "DACA," it allowed immigrants who were brought to the United States as children and who meet certain other requirements to apply for two years’ protection from deportation (removal), as well a work permit. President Obama announced changes to the DACA program that go into effect in early 2015, eliminating the age limit and extending the protected period to three years. 

The people benefitting from DACA are also often referred to as “DREAMers,” because Congress has been considering legislation on a similar theme known as the DREAM Act. But it’s impossible to say when or whether Congress will take action on the DREAM Act legislation. The Obama administration’s creation of this deferred action program is meant to fill in the gap.

 It’s important to note what this remedy is not. It does not confer amnesty, a green card, or U.S. citizenship. It simply means the immigration authorities should exercise their discretion and decline to deport an otherwise removable person who meets the criteria. Furthermore, family members of the applicant cannot claim any right to deferred action status. Parents of DACA recipients, for example, were hoping that the Obama administration, when it announced certain forms of administrative relief from deportation in late 2014, would grant them deferred-action status as well. This did not happen, however, so parents and other family members of DACA recipients must seek other options if they are not in legal immigration status.

As with any government policy put into place by the president and not Congress, a number of uncertainties remain. Although DACA can be renewed after its initial two- or three-year grant, there is no protection against the possibility that a later administration will alter or eliminate the program.

Who Is Eligible for DACA

Under the new DACA program effective in early 2015, you may apply for deferred action status if you:

  • had not yet turned age 16 when you came to the U.S. to live
  • have continuously lived (“resided”) in the U.S. since June 15, 2010 up to when you apply (excluding any brief, casual, and innocent departures)
  • were physically present in the U.S. on June 15, 2012, and also at the time you apply for deferred action
  • either entered the U.S. without inspection before June 15, 2012, or if you entered with inspection, your lawful immigration status (such as a visa or Temporary Protected Status (TPS)) had expired as of June 15, 2012
  • are either in school now (unless absent for emergency reasons), have graduated or earned a certificate of completion from an accredited high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, and
  • have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors; and do not otherwise present a threat to U.S. national security or public safety (such as by being a member of a gang).

You will, when it comes time to apply, need to supply proof of each item on this list.

Under the original DACA program, you had to be under age 31 as of June 15, 2012 (that is, born after June 15, 1981). There is no more age limit under the new DACA program. Additionally, under the old program, you had to have been continuously living in the U.S. since June 15, 2007, instead of the new date, June 15, 2010. Persons affected by these rules should wait to apply for DACA until the new program goes into effect.

Who Is Ineligible for Deferred Action Status?

Eligibility depends on meeting each and every criterion listed above. If, for example, you fit all the criteria but were already 17 when you came to the U.S. to live, you will not qualify. The same goes if you haven’t lived in the U.S. “continuously” for the required period but, for example, spent a few years in the U.S., a few years in your home country, and so forth. USCIS looks closely at whether the schools from which applicants claim to have graduated are in fact recognized, accredited (in most cases, public) schools.

The criminal grounds of ineligibility are especially challenging for some applicants; especially because the term “significant misdemeanor” is not one that has a long history in the immigration law, and thus has not often been applied to particular fact patterns by USCIS or the courts.

Here’s what USCIS has said about significant misdemeanors: They include any misdemeanor, regardless of the prison or other sentence imposed, that involved burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence of drugs or alcohol (DUI or DWI); and drug distribution or trafficking.

But that’s not all. They may also include any other misdemeanor for which the applicant was sentenced to more than 90 days in prison, not including suspended sentences, pretrial detention, or time held on an immigration detainer. (And again, three or more misdemeanors of any sort are a disqualifier for deferred action status.)

USCIS has also explained a “non-significant misdemeanor,” as including any misdemeanor punishable by imprisonment of more than five days and less than a year that is not on the USCIS list of significant misdemeanors.

For more discussion of “significant misdemeanors” in the DACA context, see “When Significant Misdemeanors Bar DACA Eligibility.”

For an overview of what the application process involves, see “Deferred Action for Young Immigrants: Application Process.”

What If Your Application Is Denied?

First off, if you or anyone you know is considering applying for deferred action status, you would be wise to consult with, and most likely hire, an experienced immigration attorney. Applying may not be risk-free.

Nevertheless, USCIS has assured attorneys that it will not share information about the immigrant applicants or their family with the enforcement arm of the Department of Homeland Security (DHS), called Immigration and Customs Enforcement (ICE).

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