On November 20, 2014, President Barack Obama announced
that the U.S. Department of Homeland Security (DHS) would not deport certain
undocumented parents of U.S. citizens and parents of lawful permanent residents
(DAPA). The president also announced an
expansion of the Deferred Action for Childhood Arrivals (DACA) program for
youth who came to the United States as children. Under a directive from the
secretary of DHS, these parents and youth may be granted a type of temporary
permission to stay in the U.S. called “deferred action.” These programs are
expected to help up to 4.4 million people, according to the Department of
Homeland Security.
Currently, U.S.
Citizenship and Immigration Services (USCIS) is not accepting applications for
the expanded DACA program for youth or the Deferred Action for Parental
Accountability (DAPA) program.
What is Deferred
Action?
Deferred action is a kind of administrative relief from
deportation that has been around a long time. Through it, DHS authorizes a
non–U.S. citizen to remain in the U.S. temporarily. The person may also apply
for an employment authorization document (a work permit) for the period during
which s/he has deferred action.
Deferred action is granted on a case-by-case basis. Even if you meet the
requirements outlined below, DHS will still have to decide whether to grant you
deferred action.
Deferred action granted under DAPA and the expanded DACA is valid for three
years and can be renewed.
A grant of deferred action is temporary. However, a person granted deferred
action is considered by the federal government to be lawfully present in the
U.S. for as long as the grant of deferred action status.
Who is Eligible for the
Deferred Action for Parental Accountability (DAPA) Program?
To be eligible for deferred action under DAPA, you must:
•
Be the parent of a U.S. citizen or lawful permanent
resident;
•
Have continuously lived in the U.S. since January 1, 2010;
•
Have been present in the U.S. on November 20, 2014;
•
Not have a lawful immigration status. To meet this requirement,
(1) you must have entered the U.S. without papers, or, if you entered lawfully,
your lawful immigration status must have expired; and (2) you must not have a
lawful immigration status at the time you apply for DAPA;
•
Have not been convicted of certain criminal offenses,
including any felonies and some misdemeanors.
Who is Eligible for the
Expanded Deferred Action for Childhood Arrivals (DACA) Program?
To be eligible for the expanded DACA program, you must:
•
Have come to the United States before your sixteenth
birthday;
•
Have continuously lived in the U.S. since January 1, 2010;
•
Have been present in the U.S. on November 20, 2014, and
every day since then;
•
Not have a lawful immigration status. To meet this
requirement, (1) you must have entered the U.S. without papers, or, if you
entered lawfully, your lawful immigration status must have expired before
November 20, 2014; and (2) you must not have a lawful immigration status at the
time you apply for expanded DACA;
•
Have graduated or obtained a certificate of completion
from high school, have obtained a general education development (GED)
certificate, or “be in school” on the date that you submit your deferred action
application. See our DACA FAQ
for more information about meeting the “be in school” requirement;
•
Have not been convicted of certain criminal offenses;
•
Pass a background check.
How Do I Apply? When Can I Apply?
Even if you are eligible for DAPA or expanded DACA, you
cannot apply for them yet!
There is currently no form or official instructions for
submitting a request for DAPA or expanded DACA. The government expects that it
will start accepting applications by February 20, 2015, from people who are
eligible for expanded DACA, and by May 20, 2015, from people who are eligible
for DAPA.
Background
Checks
USCIS will conduct background checks of DACA and DAPA applicants
through a variety of government databases.
USCIS Filing Fees
The application fee is $465, which consists of a $380 fee
for the employment authorization application and an $85 fee for fingerprints.
Establishing DAPA Eligibility
Specific instructions about what documents will be
acceptable have not been issued, yet, by USCVIS. However, we know the general types of
documentation that will be needed to establish eligibility for DAPA.
To prove that you qualify for DAPA, you will need to establish your identity,
your relationship to a U.S. citizen or lawful permanent resident son or
daughter, and your continuous residence in the U.S. since January 1, 2010.
Continuous US Residence Since January 1,
2010
In order to prove that you have lived in the U.S.
continuously since January 1, 2010, you can gather documents such as financial
records (lease agreements, phone bills, credit card bills), medical records,
and school records (diplomas, GED certificates, report cards, school
transcripts). As a rule of thumb, you should try to gather at least one
document for each 12-month period since January 1, 2010, until the time you
submit your DAPA application.
Qualifying
DAPA Relationship to a US Citizen Child or Permanent Resident Child
In order to establish the qualifying parent-child
relationship for DAPA you can provide copies of your U.S. citizen child’s birth
certificate or passport, naturalization certificate, or your permanent resident
child’s permanent resident card (“green card”).
Criminal
Record History
If you have ever been arrested, you should request a copy of
your criminal history from your state or from the Federal Bureau of Investigation
(FBI). You should also request, from each court in which you had a criminal
case, a letter describing what the judge ultimately decided in each case.
No DAPA
Eligibility Requirement to Have Filed US Income Taxes
There is no requirement that, at the time you file for
DAPA for the first time, you must have previously filed US federal income
taxes.
Establishing
Expanded DACA Eligibility
To prove that you qualify for expanded DACA, you will need
to establish your identity and continuous residence in the U.S. since January
1, 2010.
In order to prove that you have lived in the U.S.
continuously since January 1, 2010, you must provide documents that prove you
were in the U.S. during that period. It is important that you gather documents
such as financial records (lease agreements, phone bills, credit card bills),
medical records, and school records (diplomas, GED certificates, report cards,
school transcripts).
As a rule of thumb, you should try to gather at least one document for each
12-month period since January 1, 2010 until the time you submit a request for DACA.
Criminal
Record History
If you have ever been arrested, you should request a copy of
your criminal history from your state or from the Federal Bureau of
Investigation (FBI). You should also request, from each court in which you had
a criminal case, a letter describing what the judge ultimately decided in each
case.
DACA &
DAPA Ineligibility For Certain Previous Criminal Convictions
You are not be eligible if you have been convicted of a
felony or certain “significant misdemeanors,” or of three or more misdemeanors,
or if USCIS determines that you are a risk to national security or public
safety.
What is Considered a
“Significant Misdemeanor”?
A misdemeanor is a crime for which the maximum term of
imprisonment is one year or less but more than five days. A single “significant
misdemeanor” will make you ineligible for DACA.
DHS considers the following to be “significant
misdemeanors”: an offense of domestic violence; sexual abuse or exploitation;
burglary; unlawful possession or use of a firearm; drug distribution or
trafficking; driving under the influence (these offenses are considered
“significant misdemeanors” regardless of the length of the sentence that is
imposed).
For offenses not listed above, a “significant misdemeanor”
is one for which you were sentenced to more than 90 days in custody. This does
not include a suspended sentence.
What types of offenses
count towards the “three or more misdemeanor offenses”?
Any misdemeanor (not meeting the definition of
“significant misdemeanor”) for which you are sentenced to at least one day in
custody counts toward the “three or more misdemeanor offenses.”
Minor traffic offenses do not count as misdemeanors, unless they are drug- or
alcohol-related. Immigration-related offenses created by state immigration laws,
also do not count as being misdemeanor offenses or felonies.
Not
Eligible for DAPA or DACA if Considered a Priority for Deportation or
“Enforcement Priority”
DHS Secretary Jeh Johnson issued a new memorandum entitled “Policies for
Apprehension, Detention and Removal of Undocumented Immigrants” on November 20,
2014, setting forth department-wide policies for prioritizing the removal of
unauthorized immigrants. For the first time, all DHS agencies will operate
under a shared set of enforcement priorities that are focused on the removal of
individuals who pose threats to “national security, public safety, and border
security.”
These top line immigration enforcement priorities include persons:
§ engaged in or suspected
of terrorism or espionage;
§ convicted of felonies;
§ convicted of offenses
defined as aggravated felonies by the immigration law;
§ gang related convictions;
or intentional participation in gang activities; and
§ recent border crossers.
The memo identifies secondary immigration enforcement priorities, including:
§ convictions for
significant or multiple misdemeanors (excluding traffic
violations); and
§ recent border crossers
(those who entered after January 1, 2014).
Lowest immigration enforcement priority is accorded to other individuals ordered removed after
January 1, 2014. Irrespective of these priorities, persons eligible for
asylum or other relief should not be targeted.
However, the memo also indicates that anyone can be a target for removal
if an ICE Field Office Director determines that removal would serve an
important federal interest. The memo supersedes many previous policies,
including ICE-specific memos issued by former ICE Director Morton, excluding a
memo designed to protect victims of crimes and other vulnerable groups.
Following a period of training, the memo will become effective on January 5,
2015.
People who don’t fit the
new priority criteria are not priorities for removal.
Before you request deferred action, however, it is really
important that you first consult with a reputable attorney or legal
services program if you have ever been arrested or convicted of any kind of
crime.
Period of
Deferred Action If Granted DACA or DAPA
Deferred action under expanded DACA or DAPA will be
granted for a renewable period of three years. The work permit you receive will
also be for a renewable period of three years.
If Denied DAPA or DACA
If you are denied DAPA or DACA, USCIS will refer your case
to ICE only if it involves a criminal offense, fraud, or a threat to national
security or public safety. It is against USCIS policy to refer cases to ICE
where there is no evidence of fraud, a criminal offense, or a threat to public
safety or national security, unless there are exceptional circumstances.
DACA and
DAPA Grantees are Eligible for Social Security Number, Employment Authorization
Document, Advance Parole, and in Most States a Driver License
- Employment
Authorization—DACA and DAPA grantees are eligible to apply for
employment authorization, which is a federal photo-ID card (EAD, employment
authorization document), enabling work authorization and travel within the US;
- Social
Security Number (SSN)—DACA and DAPA grantees are eligible to apply for a Social
Security Number. When you receive an EAD, you may apply for an SSN at your
local Social Security office (Find it at www.ssa.gov.)
[Take your birth certificate and other identification documents to prove your
identity.]
- Driver
License—DACA and DAPA grantees who have been issued an EAD and an SSN
are eligible to apply for a Driver License in all states, except Arizona and
Nebraska. Litigation challenging the denial of driver’s licenses to DACA
grantees in those two states is ongoing. [Ten states — California, Colorado,
Connecticut, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont and
Washington — as well as the District of Columbia and Puerto Rico grant or will
soon grant driver’s licenses or cards to eligible state residents, regardless
of their immigration status.]
- Travel
& Reentry Into the US with Advance Parole—DACA and DAPA grantees may travel
abroad, but only if you apply for and are granted “advance
parole.” Advance parole is permission from DHS to leave the U.S. for certain
purposes, such as visiting a relative who lives abroad and is sick.
- NOT Likely
Eligible for Public Benefits—DACA and DAPA grantees are likely
NOT eligible for certain public benefits. People who get deferred action are
considered “lawfully present.” However, under current law, many categories of
lawfully present individuals are not eligible for many public benefits—including:
SNAP (what used to be called “food
stamps”); TANF (what used to be called “welfare”); SSI (Supplemental Security
Income); CHIP (the Children’s Health Insurance Program) or Medicaid. People
with deferred action are eligible only for Medicaid emergency services.
Individual states have the option to provide, with their own funds, CHIP and
Medicaid to children under age 21 and/or to pregnant women. The Obama
administration specifically excluded people who obtain deferred action from
participating in Obamacare (health insurance, including subsidies, available
under the federal Affordable Care Act).
Considering
Whether to Apply for DAPA or DACA
Submitting your information to USCIS can be scary,
especially if you have never let the government know that you are in the U.S.
It is not known whether the DAPA and/or DACA Programs will
be extended in three years.
If you are granted DAPA or DACA, USCIS has decided that
you are a “low priority” for deportation.
Ultimately, you will have to decide whether the benefits
of DAPA and DACA — a work permit (or EAD, employment authorization card),
Social Security number, and ability to travel outside the U.S. — are worth
applying for.
You should discuss your DACA or DAPA eligibility with a
qualified immigration attorney prior to submitting an application.
WARNING: Do NOT take advice about any immigration
case from a notary public or an immigration consultant. Contact ONLY
a qualified immigration lawyer or an accredited representative for legal advice
about your case.
For more information concern ing DACA or DAPA eligibility, or for other immigration status information visit www.gouldervisa.com
