Because the opportunity to apply for deferred action based on childhood arrival to the U.S. is fairly new, it has raised numerous questions among potential applicants. Here are some commonly asked questions and their apparent answers – bearing in mind that even the legal community is still figuring out how the U.S. government plans to implement DACA. (And for further information on this program, see the "Deferred Action for Childhood Arrivals" page of Nolo's website).
Everybody is telling me that I should apply for DACA because I’m currently eligible. But is it better to pursue another form of immigration relief first?
DACA was designed as a last-resort remedy. It’s meant for young immigrants who arrived in the U.S. before the age of 16 and successfully completed a secondary education or military service but now find themselves unable to legally work in the U.S. and without any other means to gain lawful immigration status. Successful DACA applicants will be able to work and live in the U.S. for two years without fear of deportation, but the benefits end there.
Therefore, before applying for DACA, all potential applicants should look at other options (as described under “Immigrants Seeking Visas, Asylum, Green Cards, DACA”). Are you eligible for asylum and able to present a compelling case to USCIS? Is there another status or visa you might qualify for? For example, if you are a victim of domestic violence or another crime, you might be able to apply for a U visa (allowing you to remain in the U.S. for four years with work authorization and later to apply for a green card). Is there a qualifying relative who might be able to petition for a green card for you? The bottom line: If there is any chance you might have another, more permanent form of relief available to you, it is best to go over your options with a reputable immigration attorney.
I’m wary about giving my personal details to immigration officials. Can I wait until I’m in removal proceedings to apply?
The short answer is yes, you can wait to apply. DACA relief is available to all young people who meet the eligibility requirements (“Who Qualifies for Deferred Action as an Immigrant Student or Graduate (DACA)),” including those who have been placed into removal proceedings for remaining in the United States without authorization. However, the real answer might depend on how old you are, as well as a bit of balancing of the risks versus the rewards of making yourself known to U.S. Citizenship and Immigration Services (USCIS).
If you are under 18 and don’t have a risky case (like one of those described at “Who Shouldn’t Apply for DACA Deferred Action)” applying for DACA might be your best option if none other are available to you. That's particularly true because, after your 18th birthday, you will start accruing unlawful presence that may bar you from reentry to the U.S. for three or ten years (even if you are otherwise eligible for a visa or green card), which is a far greater immigration risk than providing personal details to USCIS. If you are granted relief under DACA as a minor child, once you turn 18, the time you spend in the U.S. cannot be used to bar you from returning in the future as long as you renew your status with USCIS.
Finally, it is important to note that DACA is not immigration law, but an executive directive that could be discontinued at any time. If you wait too long to apply, you might miss your window of opportunity to obtain the benefits under DACA. See, "Should I Wait Until After the 2012 Election to Apply for DACA?“ for further thoughts on this.
I’m 13 years old. Why can’t I apply for DACA?
DACA is meant to help young people who arrived in the United States before the age of 16 and are currently in school, have obtained a high school degree or GED, or have honorably completed a tour of military service. A major benefit under DACA is the ability to apply for a work permit. Since most young people under the age of 15 who are eligible for DACA are exclusively focusing on their education (and in many places aren’t legally employable), USCIS limits DACA to applicants older than 15.
However, if you are 13 and in removal (deportation) proceedings you CAN apply for DACA relief. There is no lower age limit for children in removal proceedings. Otherwise, you may apply on your 15thbirthday, as long as you meet the other eligibility requirements and the program is still in effect.
I’m 30 now and eligible for DACA, but I’m afraid I will get deported once I turn 31. Will this happen to me if I apply?
For purposes of DACA, the only upper age limit that matters is for people who were under 31 years old on June 15, 2012. You may still apply for DACA at a later date if you are over 31 as long as you were younger than 31 on June 15, 2012.
DACA provides a stay of deportation for two years following the approval of your application. USCIS has stated that it will consider two-year extensions of DACA relief, but that process is still untested and USCIS has not provided additional details regarding renewals.
USCIS has stated that it will not provide applicants’ information to Immigration and Customs Enforcement (ICE) for purposes of placing them into removal proceedings – with some exceptions. Those include cases where the person’s history includes a criminal offense, fraud, or evidence of being a threat to national security or public safety, unless due to “exceptional circumstances.” If you have any question about whether you are in danger of being referred to ICE, consult an experienced immigration attorney.
What kind of documentation do I need in order to prove I have continuously resided in the United States? What if I am unable to get a letter from my employer?
You will need documentation that you lived in the United States on or before June 15, 2007 and continuously until June 15, 2012. In general, the more “official” the document, the stronger proof it is for USCIS. Compiling such documents might prove easier for younger applicants. For example, if you were still in primary or secondary school in 2007, you will want to submit a letter from your school on official letterhead stating your dates of attendance; or report cards, certificates, or diplomas from that time.
Older applicants might run into a bit of trouble, as employers can be wary of providing an official letter stating that someone worked for them without authorization. But you are looking to prove “presence” in the United States, not “employment.” Tax records, pay stubs, bank account statements with dated transactions, insurance policies, vehicle registrations, signed leases, and utility bills are all excellent documentation of your time in the United States.
However, if you lack many of those, you can also provide things like letters from your church confirming your participation in religious services, birth certificates of children born in the U.S. during the relevant time period, and receipts for the sale of goods listing the date, place of business, and your name as proof of your continuous residence.