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Is DACA Still Available?

Is DACA Still Available?

Since the June 18, 2020 Supreme Court decision on the Deferred Action for Childhood Arrivals program, USCIS has fully resumed taking applications for individuals who qualify under the program. This includes anyone who is renewing and should hopefully soon include people who are hoping to take advantage of the program for the first time. Additionally, anyone under DACA can once again petition for advance parole, which would allow the individual to leave the country and come back legally by presenting their advance parole paperwork.

People who are renewing their DACA are likely familiar with the process and requirements already, but for those who may be trying it for the first time or simply need a refresher, we will cover the guidelines for qualifying for DACA and what you will need in order to apply.

A Note on New Applications

The June 18, 2020 Supreme Court decision should have theoretically fully resumed DACA applications to include new applicants as well, but the USCIS website still says they are only taking renewals. Additionally, USCIS issued a statement where they claimed that the Supreme Court opinion had no basis in law. Although USCIS is held to the legal findings of Supreme Court decisions, this means that it is currently unclear how USCIS will handle new applications. It is theoretically possible that they will process them properly, but they have not yet indicated that that is the case.

Guidelines

These guidelines are mostly for first time DACA applicants. If you already have DACA, you should already meet the requirements under the guidelines (barring new criminal or immigration history). In order to qualify for DACA you must:

  1. Be at least 15 years old at the time you submit your initial request[1];
  2. Have been under the age of 31 as of June 15, 2012;
  3. Have entered the United States before turning 16;
  4. Have continuously resided in the United States from June 15, 2007 until present time;
  5. Have been physically present in the United States on June 15, 2012 AND at the time you make your request for consideration under DACA
  6. Have had no lawful status as of June 15, 2012
  7. Currently be in school, have graduated from school, obtained a certification of completion from high school and obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  8. Have never been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or the public safety.

Continuous Residence

Although USCIS says you must have continuously resided in the United States since June 15, 2007, it does not mean you are immediately disqualified if you left the country so long as the travel was before August 15, 2012 and it was only brief, casual, and innocent. Any travel outside of the country after August 15, 2012 that wasn’t specifically permitted through advance parole once you had DACA will disqualify you from being eligible.

If you have self-assessed (or been assessed by an attorney) and determined you qualify for DACA, then can move on to the next steps of actually gathering the documents you will need.

Disqualifying Criminal Offenses

If you have a criminal history, it may or may not affect your eligibility for DACA, depending on the type of criminal offense. USCIS classifies these as felonies, significant misdemeanors, or non-significant misdemeanors.

Felony - A federal, state, or local criminal offense punishable by more than one year in prison.

Any single felony will disqualify you.

Significant Misdemeanor - A misdemeanor defined by federal law to be punishable by less than a year but more than 5 days AND:

  • Is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
  • Is one for which you received a sentence for more than 90 days.

Any single significant misdemeanor will disqualify you.

Non-significant Misdemeanor - A crime for which you cannot be imprisoned for more than one year and it:

  • Is not an offense listed under the significant misdemeanor categories; and
  • Is one for which you received a sentence for 90 days or less.

You would need to have three or more of these convictions to be disqualified from receiving DACA.

Filing

There are three main documents you will need to file with either an initial application or a renewal for DACA.

  1. You must fill out Form I-821D, Consideration of Deferred Action for Childhood Arrivals.
  2. You must fill out Form I-765, Application for Employment Authorization.
  3. You must fill out Form I-765WS, named Form I-765 Worksheet.
  4. If you would like to get emails notifying you of the progress of your application, you can also fill out G-1145, E-Notification of Application/Petition Acceptance.
  5. Once all documents are filled out, gather them and mail them (along with a $495, nonwaivable fee for employment authorization and biometric services)[1] to the appropriate location based on this chart.

Advance Parole

Advance parole is a special permission by which someone without legal status can leave the country and return lawfully.

The status of advance parole is the same as with new applications for DACA. Although the Supreme Court decision legally means that it should be available again, USCIS has not issued any official notice that they will be processing them again. USCIS most recently addressed advance parole for DACA recipients back in July 17, 2019 when they said they were NOT accepting or approving advance parole requests from DACA recipients. They have not yet updated their website to say otherwise, so we cannot know for sure what USCIS would do with a request for advance parole.

If USCIS officially opens up advance parole as an option for DACA recipients, you can apply by filing Form I-131, Application for Travel Document. Note that even when USCIS was granting advance parole to DACA recipients, they only allowed it for “humanitarian, education, or employment” purposes.

Humanitarian purposes include things like obtaining medical treatment, attending a funeral, or visiting a sick relative. Education purposes would include study abroad or travelling for research. Employment purposes would include things like assignments abroad, interviews, conferences, trainings, etc.

Currently, the fee for an advance parole is $575. If USCIS confirms that advance parole will be allowed for DACA recipients again soon, this will likely be the fee, though take note that USCIS might raise fees given their financial situation.

If you need assistance with DACA renewals or want to discuss potential alternative avenues for lawful status, you can schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.

 

[1] Fees should be paid with bank drafts, cashier’s checks, certified checks, personal checks, or money orders. Do NOT mail in cash.


[1] If you are currently in removal proceedings, have a final removal order, or have a voluntary departure order (but are not in immigration detention) then you can apply for DACA as a defense to removal even if you are under the age of 15.

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