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.
Although the subsequent Trump Administration made multiple efforts to phase DACA out (partially halted by multiple lawsuits), President Joe Biden ordered reinstatement of the DACA program immediately upon taking office, and plans to eventually work with Congress to protect DACA holders and their parents by creating a roadmap to citizenship through legislative reform.
The people benefiting 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 was 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. 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.
Under the original version of the DACA program (which has been reinstated as of 2020), you can apply for deferred action status if you:
Applicants must supply proof of each item on this list.
Eligibility for DACA 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 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.
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.
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).