Risks and Downsides of Applying for DACA

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When the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program began on August 15, 2012, many eligible young immigrants jumped at the chance to work legally in the United States and immediately submitted an application as described in the section “Deferred Action for Young Immigrants: Application Process.” In the years since, and as the program has been expanded to include people of all ages who came to the U.S. as children, many more have seen a possibility to remain in the U.S. and work legally. However, if you are considering applying for DACA but haven't yet done so, take the time to first consider your own personal, immigration, and criminal history and the risks of providing these details to the U.S. government.

DACA Offers No Long-Term Benefits

A few years ago you may have heard about something called the “DREAM Act.” The DREAM Act was a proposed piece of legislation that would give conditional permanent residence and all of its benefits to qualifying young immigrants. DACA differs from the DREAM Act in many respects. DACA is a discretionary, stopgap remedy that provides a stay of deportation from the U.S. for a period of three years (with the possibility of renewal) and an Employment Authorization Document (EAD) that will allow beneficiaries to work legally in the United States. It does not provide a pathway to U.S. legal residency.

Unlike the DREAM Act, which would have become law if approved by both houses of Congress and signed by the President, DACA is a mere directive of the Obama administration and could be discontinued by a future executive branch or replaced by more restrictive legislation in Congress. If the DACA program ends, there is no guarantee that the information submitted to United States Citizenship and Immigration Services (USCIS) will not be used to institute removal proceedings against applicants at a later date.

DACA Requires Sharing Personal Information That Could Eventually Lead to Deportation

USCIS has stated that DACA applicants’ information will not be shared with Immigration and Customs Enforcement (ICE) unless there are national security, fraud, or public safety concerns. Nevertheless, there is a risk that a future event (such as a terrorist attack or a change in administration) will cause USCIS in its discretion to interpret those categories more broadly. Immigrants who have past criminal offenses (including certain “significant misdemeanors,” juvenile offenses, and expunged convictions), links to organizations flagged by the FBI, or past instances of immigration fraud, not only are not eligible for DACA, but also risk being placed into removal proceedings if they submit a DACA application.

Similarly, the personal information of family members who are undocumented and listed on a DACA application may be shared with certain branches of government if those family members are deemed a national security or public safety threat.

DACA Is Not an Amnesty

DACA does not provide amnesty for any immigration offenses committed in the past. What's more, applicants may still be deemed inadmissible at a later date for a number of reasons, listed at “Inadmissibility: When the U.S. Can Keep You Out.”

DACA's Travel Possibilities Create Risks of Being Stopped Upon Return to the U.S.

If you are granted relief under DACA, you may not freely travel in and out of the United States -- but you do gain the ability to apply for and obtain what's called "Advance Parole" (a travel document) from USCIS for “humanitarian, work or school purposes.”

Even so, this travel will trigger the scrutiny of border agents of U.S. Customs and Border Protection (CBP) upon your return. Because CBP is separate from USCIS, and has the power to prevent your re-entry even if USCIS has granted you Advance Parole. There is no guarantee that travelers with Advance Parole will not be detained when attempting to reenter the U.S. based on their past immigration offenses or criminal history.

DACA Benefits May Vary State by State

Immigrants who are approved for DACA in certain states may see more benefits than those who reside in others. While most states allow DACA beneficiaries with an Employment Authorization Document, or EAD, to apply for a driver’s license, others, such as Arizona and Nebraska, have forbidden their motor vehicle registries from issuing licenses to DACA recipients. (The Arizona law was successfully challenged in court, however.) In-state tuition regulations will also differ from state to state.

The bottom line is that if you have any questions or concerns about your past immigration history or whether divulging any criminal or immigration offenses would put you or your family at risk, you should consult an experienced immigration attorney before applying for DACA.

 

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