Deferred Action for Childhood Arrivals (DACA)

On December 7, 2020, a federal District Court ordered full reinstatement of Deferred Action for Childhood Arrivals (DACA).  United States Citizenship and Immigration Services (USCIS) has resumed accepting both initial and renewal requests.  (www.dhs.gov)

In compliance with this order, USCIS is:

  • Accepting first-time requests for consideration of deferred action based on the terms of the DACA policy in effect prior to September 5, 2017;
  • Accepting DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017;
  • Accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017;
  • Extending one-year grants of deferred action to two years;
  • Extending one-year employment authorization documents to two years. See www.uscis.gov.

A December 9, 2020 update from USCIS specifically states that USCIS will take the steps needed to provide evidence of the one-year extensions of deferred action and employment authorization documents to those individuals who received approval for a one-year period under the previous policy.  See https://www.aila.org/infonet/uscis-provides-update-on-daca-following-court

DACA is a form of administrative relief from deportation that was first implemented in 2012 under President Obama.  The goal was to allow those individuals who were brought to the U.S. as minors to receive a renewable two-year period of deferred action from deportation.  The program also provided a work permit to these individuals for the two-year period that their DACA was approved.  The work permit allowed them to contribute to their household and their community.  (www.immigrationequality.org)

As seen on the National Immigration Law Center’s site (www.nilc.org), in order to have been eligible for deferred action under DACA, the applicant must have come to the U.S. before his 16th birthday and lived continuously in the U.S. since June 15, 2007.  In addition, the applicant must:

  • Have been born after June 15, 1981;
  • Have had physical presence in the U.S. on June 15, 2012 and on every day since August 15, 2012;
  • Not have had lawful immigration status on June 15, 2012.  This means that the applicant either entered the U.S. without documents before this date or, if the applicant entered lawfully, his immigration status expired before June 15, 2012 (Applicant is without lawful immigration status at the time he applies for DACA);
  • Be at least 15 years old at the time he applies for DACA.  However, if the applicant is currently in deportation proceedings, has a voluntary departure order, or has a deportation order and is not in immigration detention, he may apply for DACA even if not yet 15 years old;
  • Have graduated high school, earned his GED certificate, be an honorably discharged veteran of the armed forces or be attending school on the date the application is submitted;
  • Not have been convicted of a felony offense, defined as a federal, state or local criminal offense punishable by imprisonment more than one year;
  • Not have been convicted of a significant misdemeanor offense or three or more misdemeanor offenses;
  • Not pose a threat to national security or public safety;
  • Not be over the age of thirty.

Now that DACA has been ordered reinstated, it’s important to note that these eligibility requirements have not changed.  In addition, Form I-821D remains the relevant form to apply for DACA and the fee is $465.  (www.uscis.gov)

DACA applicants are also permitted to apply for advance parole which allows for international travel under “exceptional circumstances.”  USCIS has interpreted this phrase to mean there is an urgent humanitarian or significant public benefit reason to travel.  This might mean travel to visit with very sick grandparents, parents or other family members or address the well-being or care of minor children.  Sufficient evidence of the reason for the travel must be included with the application.  (www.ilrc.org)

The Immigrant Legal Resource Center site mentions some practical considerations for DACA holders when contemplating international travel with an approved advance parole document.  Some examples include ensuring that your DACA approval will be valid for the entire period of travel, that you are actually physically traveling during the dates approved on your advance parole document and that you have considered the Covid-related requirements for the country you wish to travel to.  It is critical to comply with these limitations, most notably to return to the U.S. before the expiration of your advance parole document!

As has become clear, the DACA program has undergone significant legal challenges and details may still evolve, particularly in light of the new incoming presidential administration.  It is likely that work permits and travel documents may remain valid until they expire even if the program is terminated again.  Regardless, it would be prudent to consult with an experienced immigration attorney to discuss the specifics of your particular circumstances before applying, re-applying, or traveling with an advance parole document.

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