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

The Deferred Action for Childhood Arrivals (DACA) program was meant to offer temporary protection against deportation, plus a work permit, for certain immigrants who came to the U.S. as youngsters.

By , J.D.

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 was partially halted by lawsuits. President Joe Biden ordered reinstatement of the DACA program immediately upon taking office, but on July 16, 2021, a Texas federal judge ruled that DACA is illegal. This will not affect current DACA holders ability to renew or receive benefits under DACA, such as Advance Parole authorization to travel.

However, the ruling blocks all new DACA applications, including those already filed with USCIS, until further court or Congressional action. And although the U.S. government issued so-called "fortifying" regulations concerning DACA in August of 2022, these did nothing to open the door to new applications.

What's more, you cannot get your money back for a DACA application that's on file but not being acted upon.

Nolo will further update this article when the situation is clarified.

What DACA Is; And Is Not

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.

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, as of July 2021. It's possible that they will be once again accepted at a later time, after court appeals.

When and if new DACA applications are allowed, applicants will 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. 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 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.

What If Your DACA Application Is 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).

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