Under U.S. law, immigration officials have the authority to make certain decisions related to the way in which deportation cases are handled. This is called prosecutorial discretion. Officials can, for example, decide which cases deserve more immediate attention and should be readily pursued and which are "low priority" and can be set aside or deferred until a later date. As an exercise of this prosecutorial discretion the Secretary of the Department of Homeland Security (DHS) issued a memorandum earlier this year that set forth guidance related to the handling of cases involving individuals who entered the United States as children without proper documentation. As this category of individuals, in general, does not present a risk to national security, they are considered "low priority," and DHS has decided not to pursue enforcement of such cases for a set period of time, provided the individual meets certain eligibility requirements. The legal process to apply for eligibility is known as Deferred Action for Childhood Arrivals (DACA). If deferred action is granted, an individual can remain legally in the United States for a two-year period and may be eligible for certain state and federal benefits.
DACA status enables an individual to remain legally in the United States. It does not, however, provide a legal path to citizenship and does not change a person's existing immigration status. Any period of unlawful presence, either before deferred action status is granted or after it expires, will not be cured; however, further unlawful presence will not be accrued. An added benefit of applying for DACA status is that an individual can simultaneously request employment authorization for the period of deferred action. The individual must, however, be able to show "economic necessity for employment." In addition to work authorization, a person who is granted deferred action status may also be eligible for certain state benefits, such as a driver's license, although the requirements vary by state. With DACA status, an individual may also apply for what is known as advance parole which would permit him or her to travel abroad. Deferred action is granted for a period of two years, and an individual may request renewal of both deferred action and employment authorization at the end of that period.
In order to be eligible for deferred action, a person must meet all of the following requirements. He or she must have:
In addition to the above criteria, an applicant for DACA status, at the time of submitting the request, must either be in school, have a high school diploma (or its equivalent), or have been honorably discharged as a veteran of the U.S. Coast Guard or the U.S. Armed Forces. Moreover, an individual who has been convicted of a felony, significant misdemeanor, or three or more other misdemeanors occurring on different dates and arising out of different acts, omissions, or schemes of misconduct, is not eligible to apply.
Determinations will be made on a case-by-case basis and are within the discretion of USCIS. Family members must submit a separate application and qualify independently.
In order to apply for DACA, individuals should submit Form I-821D (Consideration of Deferred Action for Childhood Arrivals) as well as Form I-765 (Application for Employment Authorization) if seeking legal authorization to work. Form I-765WS (Worksheet) is also required for the DACA application to be considered, along with the requisite fees. The above forms should be sent to the USCIS lockbox designated for the individual's state of residence.
After submitting the proper forms, the individual will receive notice in the mail from USCIS that the application has been received. Subsequently, the applicant will receive a notice to attend a biometrics appointment at an Application Support Center. A background check is performed on all applicants as part of the review process. USCIS will send notice in writing if more information is needed or if an in-person interview will be required. The application status can be tracked online, and once a final decision has been made, USCIS will send written notice informing the applicant of the decision.
If an application is denied and the individual has a final order of removal, he or she may be eligible for other avenues of relief, for example, prosecutorial discretion pursuant to previous DHS guidance. If the application is denied and the individual is not subject to an order of removal, the situation is somewhat more complex. Confidentiality provisions outlined by USCIS indicate that information provided to USCIS in the DACA process is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement unless the requestor meets certain criteria for the issuance of a Notice to Appear. Information may be shared, however, with other law enforcement agencies, including ICE and CBP, where the requester meets the criteria for issuance of a Notice to Appear or for purposes other than removal. These "other purposes" include the identification or prevention of fraudulent claims, national security, and investigation or prosecution of criminal offenses. Importantly, even these restrictions are not guaranteed, and all USCIS policy memoranda have expressly noted that the policy may be changed at any time.
Immigration cases involving undocumented immigrants are often highly complex and require careful consideration of a host of implications, including the family's financial security and the preservation of vital relationships with loved ones. It is important to work with an attorney experienced in handling DACA applications. Attorney Van Doan can advise you on whether the DACA application is a suitable option for you and your family. For more information on eligibility and the legal requirements for obtaining DACA status, contact Howard County, MD immigration lawyer Van T. Doan.