Our immigration law firm receives calls daily from young, hard-working immigrants – and their parents – inquiring about the newly reinstated DACA program. The buzz surrounding DACA comes from its many legal challenges and accompanying press coverage triggered by the Trump administration’s decision to rescind the program in 2017. Since the issuance of the DHS memorandum rescinding DACA, courts have been hearing arguments for and against the move. The litigation has made it difficult for the undocumented to know whether they can apply for DACA or renew their existing DACA status.
After years of back-and-forth with the courts, the Supreme Court in Department of Homeland Security et al v. Regents of the University of California et al overturned the administration’s termination of DACA on the grounds that the act was “arbitrary and capricious.” Even after this decision in June 2020, however, the Department of Homeland Security refused to accept new DACA applications until a U.S. District Court specifically ordered the government to start accepting first-time requests for DACA in addition to renewal requests on December 4, 2020.
As of the date of this writing, DACA is once again in full force in accordance with its original terms effectuated by the Obama administration in 2012. Now that we finally have a firm decision as to the legality of DACA, a discussion about DACA’s meaning, impact and future should follow. Read on to learn more about DACA and answers to some frequently asked questions.
What is DACA?
DACA is the acronym for Deferred Action for Childhood Arrivals, a U.S. immigration policy enacted by executive order on June 15, 2012 that allows certain undocumented immigrants to receive temporary protection from deportation and the ability to work. The executive order was signed by former president Barack Obama and offers a level of protection to those who came to the United States as children. The specific protection allotted by DACA is that of “deferred action” on removal of the undocumented person for a period of two (2) years, with the possibility of renewals. It also allows a person to apply for work authorization.
Do I Qualify for DACA?
There are 7 elements a person needs to meet in order to be eligible for DACA. A person must show he or she:
- was under the age of 31 as of June 15, 2012 (the date DACA was originally enacted);
- came to the USA before reaching his or her 16th birthday;
- has continuously resided in the U.S. since June 15, 2007 until the present time;
- was physically present in the U.S. on 06/15/2012 and at the time of requesting DACA;
- had no lawful status on 06/15/2012;
- is currently in school, has graduated high school or obtained a GED certificate, or is an honorably discharged veteran of the coast guard or armed forces; AND
- has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
Some of the criteria outlined – physical presence, continuous residence, and criminal record – are not black and white, but rather subject to assessment on a case-by-case basis in accordance with current caselaw. For applicants who may have issues proving physical presence, continuous residence, or the absence of any disqualifying criminal convictions, we recommend seeking the advice of an experienced immigration lawyer.
Will DACA Lead to Resident Status or Citizenship?
One of the notable downsides of DACA is that it doesn’t go beyond temporary protection from deportation. DACA in and of itself does NOT provide any lawful immigration status on the recipient. Furthermore, DACA itself does not lead to any future immigration status, such as lawful permanent residence or U.S. Citizenship.
However, in certain situations where a DACA recipient becomes independently eligible for another immigration benefit – either through marriage, work or another circumstance recognized by law – DACA may serve as the “inspection, admission, or parole” required to adjust status in the USA rather than having to leave the country. Essentially, DACA can be seen as buying time in the USA while other opportunities may arise.
Can I Apply for DACA Now if I Have Not Applied Before?
Yes! The December 2020 United States District Court order in favor of DACA specifically included first-time requests in addition to renewal requests, advance parole requests, and eligibility for work authorization.
Will DACA Still be in Place Under the New Administration?
As of the date of this writing, all signs point to the continuation of DACA under the new administration. However, it is important to keep in mind that Deferred Action for Childhood Arrivals was created by executive order – not legislation – and is thus more readily removable. Although DACA survived court scrutiny this time around, a later administration may be able to end DACA by articulating reasons that are not considered “arbitrary” or “capricious.”
Call us for a Comprehensive Immigration Consultation
While DACA is a huge relief for many, it is certainly temporary in nature and does not lead to a more permanent status. With its limitations in mind, it is best to consider any and all other available immigration options.
Our Wellington immigration law firm is ready to hear about your immigration history and all relevant factors to determine whether long-term relief is possible. Replace fear with information by contacting us today.