DACA refers to Deferred Action for Childhood Arrivals. It is a program in which qualified undocumented immigrants who entered the U. S. while aged below 16 years can apply for postponement of their deportation for at least two years. However, DACA is temporary and does not offer an avenue to permanent U.S residency.
At Orange County Immigration Attorney, we have extensive experience in Immigration Law. We understand the risks associated with living in the U.S. without legal status as well as the procedures and documentation required to obtain that status. Our attorneys will assist you with your DACA application if you live in or around Orange County, CA.
Background Information on DACA
The Obama administration designed DACA as a program to provide a solution for young immigrants living in the U.S. without legal status. The plan was initiated in June 2012. The aim was to allow immigrants who came into the United States while still minors, and who meet defined criteria to apply for a two-year protection from removal (deportation) and a work permit.
This program does not grant you U.S. citizenship, a green card, or amnesty. It only means that immigration authorities will exercise their discretion to decline your deportation if you meet the criteria. Also, as a DACA applicant or recipient, your family members have no right to claim deferred action status. They must seek alternative options if their immigration status is not legal.
Similar to all government policies initiated by the president instead of Congress, the program has some uncertainties. DACA is renewable after the initial period of two or three years. However, the Trump administration declared its intention to end DACA and stopped processing new applications beginning September 5, 2017.
Various lawsuits were filed against Trump's administration for unlawful termination of the program, and a court injunction reopened DACA renewals in January 2018. Additionally, three district courts in the District of Columbia, in New York and California issued nationwide orders that upheld DACA renewals. Unfortunately, the program is still facing active threats of termination. Meanwhile, if you had received DACA previously, you can still apply for a renewal.
DACA recipients are often known as “DREAMers” because Congress was considering legislation based on a similar concept. The House passed the American Dream and Promise Act of 2019 on June 4, 2019. The bill offers over two million undocumented immigrants as well as dreamers who immigrated to the U.S. as children, a pathway to citizenship.
If approved by the Senate, the bill would grant 10-year legal residency status to dreamers who meet a defined set of requirements. Later, if the dreamers complete military service, work for three years or complete higher education for a minimum of two years, they would receive permanent green cards. The bill is currently placed under General Orders in the Senate Legislative Calendar (No. 112)
Eligibility for DACA
In accordance with the enhanced DACA program at the beginning of 2015, you qualify to apply for DACA if you:
- Were aged below 16 at the time you entered and started living in the U.S.
- Have lived in the U.S. continuously starting from June 15, 2010, until the time you apply. This period excludes innocent, brief, and temporary departures.
- Were present in the U.S. in person as of June 15, 2012, as well as when you make your DACA application.
- Either got into the U.S. earlier than June 15, 2012, with no inspection, or you entered the country with inspection, but your legal immigration status had expired before June 15, 2012.
- Have no convictions for a significant misdemeanor, at least three other misdemeanors or a felony; and pose no threat to U.S. public safety or national security.
- Are currently in school except for absenteeism due to an emergency, have graduated or obtained a completion certificate issued by a recognized high school, have earned a certification in general education development (GED), or you the U.S. Coast Guard or the U.S. Armed Forces discharged you from service honorably.
During the application, you will need evidence for each item in the list of requirements.
How to count as a “currently in school” applicant
The DACA requirement to be "in school" is complicated. It is, therefore, essential to establish whether your program or school qualifies. You may also make yourself eligible for DACA if you enroll in a qualified program or school before you apply for DACA.
To qualify under the “in school” precondition, you must:
- Be in school currently
- Be a high school graduate or acquired a high school completion certificate
- Have obtained a certification in general education development (GED), or
- Be a veteran, honorably discharged from the U.S. Armed Forces or the U.S. Coast Guard.
The United States Citizenship and Immigration Services (USCIS) does not recognize all types of school programs. Additionally, USCIS has set precise guidelines for programs or schools to qualify. It is critical that you ensure your school or program is DACA- eligible. It is also your responsibility to provide documentary evidence to prove that your program or school qualifies.
If you have officially registered for any of these programs, USCIS will consider you as “currently in school.”
- High School, Junior High, or Elementary School
You will be considered to be “currently in school” if you are enrolled in a private or public high school, junior high or elementary school.
- English as a Second Language Program
You can qualify for DACA if you are enrolled in an ESL program as a precondition for employment, job training, or postsecondary education, and you are progressing towards such employment, job training, or postsecondary education.
- An Educational Program in Preparation for GED or a Diploma
Educational programs can qualify for DACA if they are developed to help you obtain a GED or a diploma from high school. Federal or state grants must fund the programs, and if they are operated privately, there must be proof of their effectiveness. The measure of effectiveness is in the quality and success of the program in terms of length of time in operation and a track record of successful placement of participants in higher education or the workplace.
Fundamentally, if you opt for a privately operated GED program, pick the ones that have worked for many years and those with a sound reputation. The best options are programs run by community colleges, adult schools, and local universities.
- Literacy, Education, Career, or Vocational Training Program
A Vocational Training, Literacy, Education, or Career Program will qualify as “currently in school” if:
- Federal or state grants fund it, or you can demonstrate the program's effectiveness.
- The program aims at placing you into employment, job training, or post-secondary education
- You are training for a post-program placement.
In a situation where you are out of school, you can be eligible for DACA if you register for any of these programs. During vetting, USCIS looks at your enrollment status at the time of submitting your DACA application.
Preparing your “currently in school” evidence
As an applicant, it is your responsibility to prove that you are “currently in school.” Your friends and family may write statements or affidavits on your behalf, but these are not considered to be sufficient proof. You will need more compelling evidence from credible sources. The best proof that you are in school is providing copies of your official:
- Acceptance letters
- Report cards
- Progress reports
- Letters or other documents from your school, showing:
- Your current study course and grade level
- Attendance dates
- School name
- Whether that program aims at placing students in training, higher education, or employment.
- Track record of the program’s success such as passage rates of exams, further education, and post-program job placement.
- Length of operation of the program
- Details on funding
- Program quality
- Whether it is a community-based program
- Other relevant records from the school
What if you are on a break?
If your school has a break between classes, it is possible to apply for DACA provided that you are in the process of completing a program, a certificate or a degree, and you have officially planned to resume school either through admission to school or advance payment.
If you must apply for DACA before classes begin, you must submit proof of:
- completing your current course allocation
- enrollment for upcoming classes
- the classes you will take in the upcoming session where possible
If you take even a short break outside the school schedule, it will be harder to prove your “currently in school” status. You will be required to provide:
- A statement describing the reasons for your break
- Evidence that you intend to re-enroll
- The willingness of the school to admit you again
How Significant Misdemeanors Affect DACA Eligibility
When making your DACA application, you will be required to provide information on your criminal background. This requirement may seem like an unnecessary risk and discourage you if your record includes a traffic offense or a misdemeanor. The situation is more confusing because USCIS is reviewing criminal history in DACA applications using a fairly new criterion.
Based on USCIS guidelines, you are ineligible for DACA if you have a conviction of a felony or a significant misdemeanor. Therefore, you may be able to apply for DACA even with a criminal history of a misdemeanor. However, you need to consult an attorney.
Significant misdemeanors as defined by USCIS
According to USCI, it will consider the circumstances surrounding your criminal behavior to determine whether your conviction constitutes a significant misdemeanor. However, USCIS uses defined guidelines in considering criminal history. Under these guidelines, significant misdemeanors are first, misdemeanors under federal law. A federal law misdemeanor is any crime whose penalty is a jail term of a minimum of five days to a maximum of one year, regardless of the exact determination.
Offenses that constitute a significant misdemeanor include:
- Sexual exploitation or abuse
- Domestic violence
- DUI of drugs or alcohol
- Drug trafficking or distribution
- Unlawful use or possession of a firearm
USCIS has also developed guidelines for use where your conduct does not meet the criteria of a significant misdemeanor, as follows:
- Your offense can still be considered significant if you served over 90 days in custody, excluding suspended sentences and time served while held by immigration authorities. More importantly, USCIS has the explicit discretion to determine if your misdemeanor was significant enough to deny your application, even if you served a 90-day sentence or less.
- USCIS may deny your application if you have multiple convictions for misdemeanors even if none of them constitutes a significant misdemeanor. USCIS guidelines state that USCIS may decline your application if you have three or more sentences for misdemeanors. If the misdemeanors occurred on the same day out of one set of circumstances, USCIS might view the offenses as a single misdemeanor.
- USCIS does not consider minor traffic offenses as misdemeanors. Tickets for driving with no license or for speeding will not affect your application. The tickets may be useful as evidence of your being present within the U.S. in case you lack other documentation required in your request for specific dates.
- If your criminal history includes an offense that does not fit the “significant misdemeanor” criteria, you need to prepare documentation for the USCIS reviewer not to disqualify your application. Court documentation such as a validated disposition can provide useful details of your criminal background.
Additionally, your attorney can draft a memorandum about your criminal past, demonstrating that your application should be allowed. It is necessary that you consult an attorney regarding your specific case.
The DACA Application Process
The application process for your DACA renewal will depend on the expiry date of your previous DACA. For DACA that expired before September 5, 2016, you will submit an application as if you were applying for the first time. However, it is important to note that USCIS is not accepting new DACA applications.
For an expiry date of September 5, 2016, or after, your renewal application is as described below:
- Find a copy of your previous application for renewal to guide you in your current renewal application. Ensure that all the information is consistent in both the old and new applications.
- Download the current application forms from the USCIS website. USCIS will reject your application if the form is old or outdated. The forms you must download are:
- Consideration of Deferred Action for Childhood Arrivals (Form I-821D)
- Application for Employment Authorization (Form I-765)
- Worksheet (Form I-765WS)
- E-Notification of Application/Petition Acceptance (Form G-1145). Only fill in this form if you need a text message or email confirmation once your form is accepted.
- Complete all the forms accurately. Read the instructions and compare the responses with your previous application. Digitally filling in the forms is recommended for legibility. If you fill by hand, write in clear handwriting using black ink.
- Write a cover letter. The letter should contain a checklist that includes all the items you submit for the USCIS to have an overview of your application.
- Purchase a money order or cashier's check of $495. Make the check or money order to “U.S. Department of Homeland Security.” Personal checks or cash are not acceptable. The amount covers processing and biometric fees.
- Pack your application and send it. To make the paperwork easier to review, arrange the documents in this order:
- The $495 cashier’s check or money order
- Your cover letter
- Form G-1145
- Form I-821D
- Form I-765
- Form I-765WS
- All copies of supporting evidence
Use paper clips instead of staples to hold your forms together and make the evaluation process more straightforward. You must submit the request at the correct USCIS lockbox. Check USCIS's website for direct filing addresses for information on where you should mail your application depending on where you live. To mail your form, use priority shipping such as USPS' Priority Mail and keep the tracking number.
After USCIS receives your application, they will verify whether you have attached all the documents, including the application fee and all supporting documents. If your application is complete, you will receive an appointment notice from USCIS to seek biometric services at an Application Support Center if the appointment is necessary. Ensure that you read and comply with the instructions given in the notice. Missing the biometrics appointment will delay the processing of your application or have your request denied. If your request is accepted, you will receive a notification by email, text message, or both based on the information you provide on Form G-1145.
Application for Travel Documents by DACA Recipients
With approved DACA status, you can apply for Advance Parole, a travel document that allows you to leave and possibly return to the U.S. legally without losing your DACA status. However, this possibility does not guarantee or eliminate loss of your DACA-approved status.
Traveling with Advance Parole comes with some risks such as:
- You should never leave without having applied and received your Advance Parole Document. If you do, authorities will deny you reentry and cancel your DACA status.
- Customs and Border Protection (CBP) Officers may deny you entry if they think you are inadmissible due to security or health reasons. Your past unlawful residency in the U.S. is unlikely to be a cause for inadmissibility. The penalty of a three-year or a ten-year ban cannot be used for your past illegal presence since the ban requires a departure. Traveling with advance parole is not considered an exit.
- If you have a record of an outstanding deportation or removal order, leaving the U.S may be considered as following through with the law. The border authorities will deny you reentry, and the specific number of years will depend on the reasons for the deportation order. If you are in such a situation, your attorney can reopen your immigration case and use your DACA approval to have the court close those proceedings.
Eligibility for Advance Parole
To qualify for Advance Parole approval, you must show your DACA approval and a sufficient reason for your travel. Such purposes include:
- Compelling humanitarian missions, such as seeking medical assistance, visiting an ailing relative, attending a funeral of a family member, or other urgent matters related to the family.
- Educational reasons, for example, academic research or participating in study abroad programs.
- Employment reasons, such as conferences, training, interviews, overseas client meetings or assignments, and traveling for a job under a foreign employer based in the U.S.
While submitting your application, you must provide valid documentary evidence of your reasons for traveling. An immigration attorney can help you determine if the reason for your intended travel is adequate, assess the risks of your departure, and assist you in preparing a credible application.
Application for Advance Parole for DACA Recipients
For your Advance Parole Application, USCIS will require you to submit:
- Form I-131 provided by USCIS
- A copy of your photo identity document, for example, your passport’s identity page or your driver’s license
- Form I-797 - proof of your DACA approval
- Documents to support your reason for travel
- Details of your intended travel dates and the length of your journey. You will provide this information in Form I-131, Part 4
- The application fee
To apply, you can log in to the USCIS website and download Form I-131 for free. Form I-131 has multiple uses so you must fill out only the sections relevant to your Advance Parole application. The website also contains application instructions.
To determine the required documentation, visit the “General Requirements” section in the USCIS instructions (page 8, 1.c. (5)). Provide as many copies of official documents as possible. For example, a funeral announcement or death certificate is useful if you intend to travel due to the death of a family member. For all documents, you will need to provide copies because your documents will not be returned to you.
If your Advance Parole application is approved:
- You will receive a form known as “Authorization for Parole of an Alien into the United States” (Form I-512L)
- Carry the original document, not a copy when leaving the U.S.
- Show the document before boarding your means of travel back and to the Customs and Border Protection officers on your return
- Check the form to see the last date of your return. Ensure you are back to the U.S. before that date
Contact an Immigration Attorney Near Me
Issues of immigration and legal status for immigrants are complex. If you entered the country as a child and are yet to attain legal status, DACA is a legitimate option that you can pursue to help you achieve legal status. Contact the Orange County Immigration Attorney to get help with your DACA application. Call us at 714-909-0426 and talk to our attorneys concerning your specific case today!