Consideration of Deferred Action for Childhood Arrivals (DACA):
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and may be eligible for employment authorization. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Deferred action allows an individual to be lawfully present in the U.S. during the period deferred action is in effect, however, it does not provide an individual with lawful status.
As of August 2013, 455,455 DACA cases have been approved and 9,578 cases have been denied.
You may request consideration of deferred action for childhood arrivals if you:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching your 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- Are currently in school*, have graduated or obtained a certificate of completion from high school (public/private high school or secondary school), have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
This process is open to any individual who meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE. If you are currently in immigration detention and believe you meet the guidelines, you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate.
- a public or private elementary school, junior high or middle school, high school, or secondary school;
- an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are 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 General Educational Development (GED) exam or other equivalent state-authorized exam.
Anyone requesting consideration for deferred action under this process must have been under 31 years old as of June 15, 2012. You must also be at least 15 years or older to request deferred action, unless you are currently in removal proceedings or have a final removal or voluntary departure order.
- Complete Forms I-821D (Consideration of Deferred Action for Childhood Arrivals), I-765 (Application for Employment Authorization), and I-765WS (Worksheet)
- Mail forms, evidence, and $465 fees ($380 fee plus $85 fee biometric services)* to USCIS
- Submit biometrics after receiving USCIS appointment notice
*Fee exemptions are available in very limited circumstances.
If USCIS Defers Action in Your Case
If USCIS defers action in your case and grants employment authorization, you will receive a notice of decision in writing and an Employment Authorization Document separately in the mail.
If USCIS Does Not Exercise Deferred Action in Your Case
If USCIS decides not to defer action in your case, you cannot appeal the decision or file a motion to reopen or reconsider. USCIS will not review its discretionary determinations, except in the case of an administrative error.
If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.
Travel Requirements and Restrictions
Certain travel outside the United States may affect the continuous residence guideline. Traveling outside the U.S. on or after June 15, 2007, and before August 15, 2012, will not interrupt your continuous residence if the travel was brief, casual, and innocent.* If you travel outside the United States after August 15, 2012, and before your request for deferred action is adjudicated, you will not be considered for deferred action under this process.
Once USCIS has approved your request for consideration of deferred action, you may file Form I-131, Application for Travel Document, to request advance parole to travel outside of the United States. If you travel outside the United States without first receiving advance parole, USCIS will automatically terminate your deferred action. USCIS will only grant advance parole if your travel abroad will be for educational, employment, or humanitarian purposes.
*Brief, casual, and innocent absence:
- The absence was short and reasonably calculated to accomplish the purpose for the absence;
- The absence was not because of an order of exclusion, deportation or removal;
- The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and
- The purpose of the absence and/or your actions while outside the United States were not contrary to law.
National Security and Public Safety Guidelines
If you have been convicted of a felony offense, a significant misdemeanor offense (, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or are otherwise deemed to pose a threat to national security or public safety, you will not be considered for deferred action under this process.
A minor traffic offense will not be considered a misdemeanor for purposes of this process, but driving under the influence is a significant misdemeanor regardless of the sentence imposed.
Renewing Deferred Action Under This Process
Individuals whose case is deferred under this process will not be placed into removal proceedings or removed from the United States for a period of two years, unless terminated. You may request consideration for a two-year extension of deferred action through a process to be detailed in the future.
Attorney Sharon Liu received her Juris Doctorate from the University of California, Hastings College of the Law, where she was actively involved in the Immigrants’ Rights Clinic, Workers’ Rights Clinic, and Civil Justice Clinic. She received UC Hastings’ Outstanding Achievement in Pro Bono Award and was a member of the Asian Pacific American Law Student Association. Prior to working at Lipman & Wolf, LLP, she was a Law Fellow at the International Institute of the Bay Area and Bay Area Legal Aid. She is fluent in Chinese (Mandarin).