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

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 people 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.

The subsequent Trump Administration made multiple efforts to phase DACA out, which became mired in lawsuits. The result is that new DACA applications will not be accepted or decided upon by U.S. Citizenship and Immigration Services (USCIS) until further court or Congressional action. Although the U.S. government issued so-called "fortifying" regulations concerning DACA in August of 2022, these did not open the door to new applications. Nevertheless, current DACA holders can still renew their status or receive related benefits such as Advance Parole authorization to travel and return to the United States.

What DACA Is and Is Not

The people benefiting from DACA are also often referred to as "DREAMers," because Congress had been considering legislation on a similar theme, known as the DREAM Act. The Obama administration's creation of DACA was meant to fill in the gap before Congress acted (which it has now delayed doing for decades), offering a temporary way for young people who'd essentially grown up in the United States to continue their education and find jobs, all without fear of deportation.

One other new development from the Biden Administration is that in early 2023, it announced a plan to expand the federal Medicaid and Affordable Care Act programs to include DACA recipients. The idea is to let DACA holders apply for medical insurance coverage through the Health Insurance Marketplace and their state Medicaid agency, with low income taken into account in qualifying for financial assistance. The regulations to implement this new program had still not been finalized by November of 2023 however, dispute inquiries by members of Congress.

It's equally important to note what DACA 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. Although efforts were made to include parents of DACA recipients among those granted administrative relief from deportation, Trump-administration lawsuits put an end to that. Thus parents and other family members of DACA recipients must currently seek other options if they are not in legal immigration status in the United States.

Who Is Eligible to Apply for DACA

Under the original version of the DACA program (which the Biden administration attempted to reinstate in 2020), you could apply for deferred action status if you:

• had not yet turned age 16 when you came to the U.S. to live
• were physically present in the U.S. on June 15, 2012, and also at the time you applied for deferred action
• had continuously lived ("resided") in the U.S. since June 15, 2007 up to when you applied (excluding any brief, casual, and innocent departures)
• were under the age of 31 on June 15, 2012 (that is, were born after June 15, 1981)
• 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
• were either in school (unless absent for emergency reasons), had graduated or earned a certificate of completion from an accredited high school, had obtained a general education development (GED) certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, and
• had not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors; and did not otherwise present a threat to U.S. national security or public safety (such as by being a member of a gang).

Again, however, new applications are not being accepted. There's a small chance that they will be once again in the future. When and if new DACA applications are allowed, applicants will presumably (unless the terms get changed) need to supply proof of each item on the above list.

Who Is Ineligible for DACA?

Eligibility for DACA depends on meeting each and every criterion listed above.

Age, Residence, and Education Based Ineligibility

If, for example, you fit all the criteria but were already 17 when you came to the U.S. to live, you would 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.

Crime-Based Ineligibility: A Significant Misdemeanor

The criminal grounds of ineligibility are especially challenging for some DACA applicants; especially because the term "significant misdemeanor" is not one with a long history in the immigration law. Thus it has not often been applied to particular fact patterns by USCIS or the courts. USCIS states that it will consider the totality of the circumstances regarding the criminal behavior and make decisions on an individualized basis. However, USCIS does use a set of guidelines while looking at criminal history.

These guidelines state that a significant misdemeanor is, for starters, a misdemeanor; meaning, according to federal law, a crime punishable by five days to one year in jail regardless of the actual sentence imposed. A misdemeanor that includes any of the following offenses will be considered "significant":

• domestic violence
• sexual abuse or exploitation
• burglary
• unlawful possession or use of a firearm
• drug distribution or trafficking, or
• driving under the influence of drugs or alcohol (DUI or DWI).

USCIS can nevertheless decide that conduct that did not meet any of these criteria can be considered a significant misdemeanor. For example, if you were convicted of a misdemeanor that does not fit the categories listed above, your misdemeanor can still be viewed as significant if you were sentenced to time in custody of more than 90 days. This time does not include time in suspended sentences or time served beyond the sentence while under an immigration hold.

But that's not all. USCIS also includes 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.

Crime-Based Ineligibility: More Than One Non-Significant Misdemeanor

If you have been convicted of multiple misdemeanors, but none of them constituted significant misdemeanors, USCIS may still deny your application. USCIS states that if someone was convicted of three or more misdemeanors, their application may be denied even if none of the crimes was a significant misdemeanor. However, if the misdemeanors arose out of the same set of facts on the same date, USCIS could look upon that misconduct as one misdemeanor rather than multiple misdemeanors.

What If You Have a Traffic Offense on Record?

USCIS will not view minor traffic offenses, such as a speeding ticket or a ticket for driving without a license, as misdemeanors. This is important because many people have two or three traffic tickets in their history. These tickets will not disqualify you.

You might even consider using the tickets for evidence of presence in the U.S. if you do not have other documentation for a specific date as required by the application. However, any traffic offense involving driving under the influence (DUI or DWI) will be considered a significant misdemeanor no matter the sentence that was imposed.

What If You Were Convicted of a Crime, But the Record Was Later Sealed or Expunged?

Although USCIS might gain access to information about an expunged crime, where the record has been sealed, it will not automatically bar someone from DACA on that basis. The same is true for juvenile convictions or punishment.

What Happens If Your DACA Application Was Denied

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). But if you've applied for DACA unsuccessfully, you might want to consider consulting with an experienced immigration attorney. The attorney can assess whether any other immigration benefits might be open to you.