If I am eligible for DACA, should I apply for that or asylum?

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Question:

I’m 18 and I’ve been living in the U.S. with my family without legal immigration status since I was very young. I just enrolled at a community college, but I’m unable to get my driver’s license and find part-time work. I was considering applying for asylum so I could eventually get a green card, but I learned about the Deferred Action for Childhood Arrivals (DACA) that would give me a work permit. Which one should I apply for?

Answer:

You may apply for both if you are eligible, but keep in mind that DACA does not provide a path to permanent residence or a “green card.” DACA will give you a work permit, but it provides only a discretionary two-year relief from removal that can be renewed. If you are granted asylum, you may apply for a green card one year after your approval.

Be aware that it is usually much easier to make a case for DACA relief than for asylum. For DACA, all you need to do is submit evidence to U.S. Citizenship and Immigration Services (USCIS) that you meet the eligibility requirements to do with age, presence, continuous residence, education or employment, and no serious criminal history.

Applying for asylum is much more difficult. You must prove that you fear persecution based on your race, nationality, religion, political opinion, or social group if you were to return to your home country. To make a convincing case, you must submit plenty of supporting documentation and evidence to show that you have a “well-founded” fear of persecution. Time is also of the essence: you should file within one year of their U.S. arrival OR within one year of turning 18 or will need to show that extraordinary or changed circumstances caused your delay in filing.

If you are most concerned with your ability to work, you may want to apply for DACA first in order to receive your work permit. Asylum applicants who do not already have a work permit must wait to apply for one until their application is approved or until 150 or more days pass without a decision from USCIS.

If your application for asylum is denied, and you have not been given DACA relief or another legal immigration status, you will be placed into removal proceedings in immigration court. At that point, you can request consideration under DACA and have an immigration judge reconsider your application for asylum.

To learn more about DACA, see Nolo’s “Deferred Action for Childhood Arrivals” page. For more information on the asylum application process, see “Applying for Asylum Status.”

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