DACAmenting the Undocumented
(This is part two of our three-part series on the development of Deferred Action for Childhood Arrivals, with a look at President Obama's its proposed expansion and the development of DAPA)(reposted with permission)
On November 20, 2014, President Obama announced an expansion of the DACA program which increased the pool of potential DACA applicants by easing some of the restrictions that were previously in place. President Obama also initiated a program called Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA which would have protected the undocumented parents of US citizen children or lawful permanent resident (LPR) children.
The proposed DACA expansion had three significant changes:
The elimination of the age cap for DACA applicants (previously only applicants born on or after June 16, 1981 were eligible to apply)
The requirement that applicants have continuously resided in the US since January 1, 2010 (previously only applicants who have continuously resided in the US since June 15, 2007 were eligible to apply)
DACA grants and employment authorization documents (EAD) would be valid for three years (previously only valid for two years before renewal required)
Under the DACA expansion, an applicant must:
Have entered the United States before reaching your 16th birthday;
Have continuously resided in the United States from January 1, 2010 up to the present time;
Have been 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;
Had no lawful status on June 15, 2012;
Be currently in school, have graduated or obtained a certificate of completion from high 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, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Unfortunately, just 24 hours before the newly expanded DACA was to be implemented, a coalition of 26 states led by Ken Paxton, the Republican attorney general of Texas, filed for an injunction in a Texas federal district court to block the program's expansion. Applicants who qualified for the first DACA grant are still eligible to be DACAmented under the pre-expansion guidelines.
As before, USCIS will require individuals to be fingerprinted to conduct background checks on DACA applicants. In addition, applicants will be required to prove that they qualify for DACA relief.
Generally speaking, applicants who need to prove their physical and continuous presence in the United States can look to a variety of sources ranging from financial records (leases, various bills, other correspondence with your name, date, and address on it), medical records, or academic records (diplomas, GED certificates, report cards, or school transcripts). One advantage of obtaining academic records is their dual-purpose in also meeting the education requirements of DACA. Please keep in mind that all documents need to be translated into English.
One potential pitfall for many DACA applicants is the existence of any sort of arrest or criminal history. While USCIS states that only a felony, significant misdemeanor, or three misdemeanor offenses will affect eligibility, it is vitally important to speak with an attorney to review your case history. Clients have come to my office without any idea that they had an outstanding warrant or with a misunderstanding of what actually transpired in their day in court.
Finally, one very commonly asked question is, is applying for DACA safe? And unsurprisingly, the answer is it depends. While the process of applying for DACA itself is safe for most people, there is certainly a lot of fear in letting the government know you're here, especially after staying silent for so long. In addition, it is uncertain if the next president will expand or renew the program, or if the program will be scrapped entirely.
Ultimately, it is a conversation that may be scary but definitely one worth having. If you have any questions or would like to seek a consultation for your case, I would love to speak with you. Call Chan Law at (973) 544-8030.