As the August 15 open date for deferred action approaches, many questions about the DACA process remain. Hopefully, this blog post will help answer some of those questions.
What is deferred action?
Deferred action is a decision within the Department of Homeland Security’s discretion to defer pursuing enforcement against a person for a specific period. A grant of deferred action does not confer lawful immigration status, alter an individual’s existing immigration status, or provide a path to citizenship. While deferred action does not cure any prior or subsequent period of unlawful presence, time in deferred action status prevents an individual from accruing unlawful presence during the period of deferred action. Deferred action does not establish eligibility for any immigration benefit. This status can be renewed or terminated at any time.
What if I am already in the voluntary departure period?
If you are in voluntary departure and believe that you may be eligible for DACA, you will have to have your case reopened PRIOR to your voluntary departure date. Seek the advice of an immigration attorney before your voluntary departure date.
Is there a minimum age requirement for DACA applicants?
If an individual has never been in removal proceedings, or if their proceedings were terminated before they apply for DACA, they must be at least 15 years old at the time of filing the application. Those who are under the age of 15, but otherwise meet the requirements may apply once they turn 15. Those who are in removal proceedings or subject to a final removal or voluntary departure order can apply even if they are under 15.
What crimes would render me ineligible for DACA?
Those having been convicted of a felony, a significant misdemeanor, or three or more non-significant misdemeanors (not including minor traffic offenses) are ineligible for deferred action unless the Department of Homeland Security determines that there are exceptional circumstances. At this time, there has been no guidance provided regarding what constitutes an “exceptional circumstance”. A felony is an offense punishable by a potential sentence of more than one year. A misdemeanor is an offense punishable by more than five days, but less than a year. The Department of Homeland Security only uses federal definitions/classifications for purposes of determining eligibility under DACA.
Juvenile delinquency adjudications will not automatically disqualify an applicant from DACA relief. A minor with a delinquency adjudication will get a case-by-case review to see if the “particular circumstances” of his or her case warrant a positive exercise of prosecutorial discretion under DACA.
Expunged convictions will be treated like juvenile delinquency adjudications for purposes of DACA only. This is different from immigration law precedent, which treats expunged convictions as convictions for immigration purposes.
What is the application process for DACA?
After August 15, 2012, applicants (except those in detention) should send a completed application form and supporting documentation, along with the I-765 (Application for Employment Authorization) and the $465 fee to the USCIS lockbox. All applicants must submit to biometric and biographic background checks prior to receiving deferred action. At this time, the application has not yet been released by the USCIS.
What if I travel outside of the United States?
Those who travel outside the United States after August 15, 2012 (either before they apply for DACA or while their applications are pending) will be deemed not to have fulfilled the continuous residence requirement, and will be disqualified from relief under DACA. Those who have been granted deferred action may be permitted to travel abroad, but only pursuant to a grant of advance parole from USCIS (by filing Form I-131, Application for a Travel Document, and paying the necessary fee). USCIS will generally only grant advance parole to a DACA recipient if the purpose of the intended travel is humanitarian, educational or employment related. Even if advance parole is granted, it may not be in your best interest to travel abroad, especially if you are over the age of 18, due to the 180-day unlawful presence inadmissibility bars. Speak to an immigration attorney prior to travel abroad if you are granted relief under DACA.
Can Deferred Action be extended beyond 2 years?
Yes. Unless a grant of deferred action is terminated prematurely, a recipient may request a renewal of both deferred action and employment authorization. These requests will be considered on a case-by-case basis.
The best course of action for anyone who believes they may be eligible for relief under DACA is to seek the advice of an immigration attorney.
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Salt Lake City, UT 84111