Risks and Downsides of Applying for DACA

When the Deferred Action for Childhood Arrivals (DACA) program was instituted by President Obama in 2012, many eligible young immigrants jumped at the chance to work legally in the United States, and submitted DACA applications. Others held back, fearing that this would be a way for the U.S. government to harvest addresses for deportation.

Fortunately, the worst fears were unfounded. The Trump Administration did, however, take a hard line with some DACA recipients, and attempted to end the program altogether.

The Biden Administration has brought DACA back, for new as well as renewing applicants. It also plans to work with Congress to reach a more permanent legislative solution for all undocumented immigrants currently living in the United States.

In the meantime, if you are considering applying for DACA for the first time, you'll want to consider your personal, immigration, and criminal history and the risks of providing these details to the U.S. government.

DACA Offers No Long-Term Benefits

Congress has by now spent many years considering immigration reform legislation, including something called the "DREAM Act." The DREAM Act was meant to give conditional permanent residence and all of its benefits to qualifying young immigrants. But after Congress continually failed to make a decision, President Obama instituted DACA as a discretionary, stopgap remedy.

A president cannot write new legislation, only issue orders about how to enforce existing laws. Drawing on that, and a tradition known as "deferred action," DACA 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 allows one to work legally in the United States. It does not currently provide a pathway to U.S. legal residency.

DACA could also 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 Later 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.

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 or legal forgiveness for any immigration offenses committed in the past. And again, it's not permanent residence or even close to it.

What's more, applicants may still be deemed inadmissible to the U.S. if applying for a green card (lawful permanent residence) at a later date, for the reasons listed at Inadmissibility: When the U.S. Can Keep You Out.

Can DACA Recipients Travel?

If granted relief under DACA, you may not freely travel in and out of the United States, though 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, it 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 Vary State by State

Immigrants who are approved for DACA in certain states might 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 have forbidden their motor vehicle registries from issuing licenses to DACA recipients.

In-state tuition regulations at colleges and universities 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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