On June 15, 2012, the Department of Homeland Security (DHS) announced a plan to stop the deportation of young people who meet a list of criteria, and if approved, are granted a deferral of their removal and work authorization for two years., This program was designed to help applicants who arrived to the U.S. at a young age and grew up in this country to contribute to their communities, pursue and complete their education, and lawfully enter the workforce. Details of the plan were finally announced on August 3, 2012. This policy is a form of administrative relief known as deferred action. A few years ago, Trump tried to end it the wrong way, and the Supreme Court then told the President that if he wants to end it, he has to follow the law. So, while the ultimate fate of the DACA program remains tied up in the federal court system, for now, DACA remains in effect for those who had initially applied and been approved, thus are eligible for continuous renewal.
WHAT IS DEFERRED ACTION GENERALLY?
Deferred Action is a discretionary authority that the Department of Homeland Security uses from time to time to allow certain deserving individuals the right to live and work in the United States for a set period of time. Deferred action does not confer on anyone lawful status or a pathway to citizenship. It also does not prevent DHS from re-initiating removal proceedings against individuals. In fact, someone may meet all the requirements for deferred action as laid out below, but DHS has the last say on whether to grant deferred action. Individuals who qualify and are granted deferred action do not accrue unlawful presence and become eligible for work authorization.
WHO IS ELIGIBLE FOR DACA?
Individuals must meet all of criteria laid out below, in order to qualify:
- Must be under the age of 31 as of June 15, 2012;
- Must have arrived in the United States before the age of 16;
- If not in removal proceedings, must be at least 15 years old in order to apply;
- Must have lived in the United States continuously for five consecutive years as of the date of the June 15, 2012 memo;
- Must have been present in the United States on June 15, 2012;Go
- Must not have been convicted of a felony offense, a “significant” misdemeanor offense, or three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct;
- Must not otherwise pose a threat to national security or public safety;
- Must currently be in school or have graduated from high school or have obtained a general education development certificate (GED), or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
WHAT CAN YOU DO WITH A WORK PERMIT (EAD)?
- Fill out an I-9 to work legally.
- Obtain a Social Security Number from the Social Security Administration.
- Possibly obtain a Driver’s License and state ID in most states from the Department of Motor Vehicles (issues are still being resolved with the Georgia Department of Driver’s Services)
CAN I GET A TRAVEL DOCUMENT?
Applicants approved for DACA are also then eligible to apply for Advance Parole, which, if approved, would allow one to travel outside of the U.S. briefly and subsequently reenter with lawful admission. This can, and has been, a game changer for DACA recipients who then become eligible for permanent forms of relief in the U.S. and must be able to show a lawful entry. Note that eligibility for advance parole (regular or emergency processing) must be established with evidence of a need to travel, such as an ill family member, a family member who is going to or has passed away, possible work travel, or studying abroad.
BUT WHAT IF I HAVE A CRIMINAL RECORD?
It is highly recommended that individuals with a criminal record consult with an immigration attorney before applying for any benefit.
FELONY
Individuals convicted of a felony are ineligible for the program. A felony is defined broadly by the government as a “federal, state or local criminal offense punishable by imprisonment for a term exceeding one year.” If a state punishes an offense with more than a year in prison, it would count as a felony under federal law.
SIGNIFICANT MISDEMEANOR
Individuals with a significant misdemeanor are ineligible for the program. A significant misdemeanor is a “federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment, that involves violence, threats or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; DUI; obstruction of justice, unlawful flight, unlawful possession of a firearm; possession of drugs, or drug trafficking.” The maximum term of imprisonment under Federal Law is more than 5 days and less than one year (regardless of sentence), domestic violence, drugs, violent crimes, or DUI. Or, any crime for which the person is sentenced to time in custody of more than 90 days. This is VERY restrictive!! But, the entire criminal history will be reviewed.
MULTIPLE MISDEAMONORS
Individuals who have been convicted of “three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct” are not eligible to be considered for deferred action under the new process.
WHAT YOU NEED TO FILE FOR DEFERRED ACTION
Filing Fee: The Filing fee is $495.
Do your best to put together as many of these items as you can, to prove your eligibility for the Obama Deferred Action Program;
- Online Questionnaire (provided by our office electronically, to be filled out by you);
- Two Passport photographs;
- Copy of passport biographical page & any prior visas and Forms I-94;
- Copy of birth certificate;
- Copy of marriage certificate or divorce, if applicable;
- Copy of every court case on record, specifically any criminal convictions, and copies of all police reports, and proof and that all traffic tickets have been paid;
- Copy of school records- proof of enrollment, attendance records, report cards, awards dating through high school (and into college, if applicable). You can get this by going to your school’s registrar and requesting them;
- Copy of diploma or GED (if applicable); if you did not graduate from high school and do not yet have a GED, GET ONE! You can also enroll in GED classes and this satisfies this requirement. This is a list of all the places that give the GED test.: https://tcsg.edu/ged_testing_centers.php;
- Copy of college transcripts, degree, and other evidence of you attending post high-school courses, if any;
- Proof of presence before June 15, 2007
- Tax returns filed by you, or including you dating to 2006;
- Past leases, receipts, records dating to before that date; which show living in the United States;
- Affidavits from relatives, friends, teachers, employers, neighbors attesting to your presence in the United States (on their own, except as to a GAP in process or a brief, casual or innocent departure);
- Birth certificates of children and/or siblings that date before June 2007;
- Photographs placing you in the US before 2007; and
- Any other documents that show you were physically in the United States before you turned 16.
