New York Lawyer's Legal Updates

DACA: Is It Worth Applying Now?

Author: New York Immigration Lawyer Alena Shautsova

New York Immigration lawyer Alena Shautsova helps clients to address the Immigration challenges they face and plan for the successful immigration future in the United States.

DACA or deferred action for childhood arrivals was first introduced to the United States Immigration system back in 2012 when President Obama decided to help certain undocumented children to be saved from deportation. The program’s qualifications were pretty straightforward and designed for undocumented immigrants who entered the country before the age of 16 and graduated from a U.S. high school, are currently in a qualifying educational program, or served in the U.S. military. Minor criminal past will not bar individuals form receiving DACA, as well as past orders of deportation. Individuals granted DACA are protected from physical removal and may obtain permission to work for two years, with the possibility of renewal. In addition, an individual granted DACA, may be able to qualify and obtain an advance parole document, that would help him/her to successfully travel internationally and return back to the United States.

The problem with DACA is that almost ten years later, it still has the same deadlines and qualifications as as to when it was first announced. For example, a new applicant for DACA, would still have to show that he/she entered the United States and continuously resided in the United States from June 15, 2007, and as of June 15, 2012, a person was under the age of 31. Today, the qualifying adults are close to forty years old. The established deadlines were never changed.

Nevertheless, there still exist a considerable amount of persons who never applied for DACA even though they qualified for it. Some did not apply due to fear of being “discovered”, some because they could not prove they resided in the United States since a certain date, and some because of lack of meeting the educational requirements.

The DACA program was set to be discontinued by the Trump administration, but so far, it has not been, and in fact it was restored to its full force. Now, the question is if it is till worth filing for it, if let’s say, you have never filed for it, and you meet the qualifications?

If I had to answer it for a client, I would say: absolutely. You may be working in the United States already, without a proper authorization, and may not see the need to obtain one, but DACA provides more than just a work permit. It gives a sure protection from the physical removal. Additionally, there is a strong possibility that if a person has a DACA status, he/she may qualify for one of the proposed Immigration reform plans. There is an indication in the proposals that if a person has a DACA status, he/she will be able to immediately file for a residency (unlike those who do not have DACA and whose path to US citizenship may have to be much longer). DACA can be used to stop deportation or removal proceedings. A DACA beneficiary, may also be able to help his/her spouse to qualify for the Immigration reform, when it passes (some proposals indicated that a spouse of a Dreamer will not have to independently meet the requirements for Immigration reform). Importantly, a person who has DACA does not accumulate unlawful presence in the United States, and if he/she received DACA prior to the 18 th birthday, he/she will not be subject to unlawful presence bars at all.

A couple of thing to keep in mind when collecting documents for the initial DACA application:

  • Criminal bars may apply in case of a DACA applicant: A DACA applicant must show that he/she has not been convicted (as an adult) of a felony offense, a significant misdemeanor offense, three or more non-significant misdemeanor offenses, or do not otherwise pose a threat to national security or public safety. In applications for DACA, a conviction that has been the subject of rehabilitative relief (“expunged”) is not an absolute bar to eligibility, but it can be considered for discretionary purposes.
  • Individuals who are currently enrolled in a qualifying school or educational program at the time of submitting their request, also qualify for DACA. These applicants will need to show they are currently enrolled by submitting a class schedule, transcript, or school letter. To meet the qualifications, the educational institution must be: A public, private, or charter elementary school, junior high or middle school, secondary school, alternative program, or homeschool program that meets state requirements; An education, literacy, career training program (including vocational training) that has a purpose of improving literacy, mathematics, or English, or is designed to lead to placement in postsecondary education, job training, or employment and where the individual is working toward such placement, OR an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other state-authorized exam in the United States.
  • Continuous residence does not mean that the applicant never has left the United States, it only requires proof the person has been “residing” here during the required periods. Keep in mind that travel before June 15, 2007 does not count for DACA eligibility purposes. For absences (or travel) that occur between June 15, 2007 and before August 15, 2012— was the absence “brief, casual, and innocent?” If so, the applicant may still qualify for DACA. Travel after August 15, 2012—will disrupt the applicant’s continuous residence and eligibility for DACA, UNLESS the travel was with advance parole. USCIS has stated that applicants who traveled after this date, and without advance parole, are not eligible for DACA.

DACA qualifications sounds straightforward, yet, in many instances, it is not so easy to determine if a person will qualify for it or not. If you need help determining DACA qualifications, reserve a confidential appointment at 917 885 2261. (Consultation fees apply).

07 May 2021
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