Immigration Corner

DACA NOW AND IN THE NEAR FUTURE
DACA

By Raul Ray, Esq.

On November 20, 2014, President Obama announced executive actions that would expand the existing DACA program and create a new program to allow parents of U.S. citizens and permanent residents to remain in the U.S. and work without fear of deportation.

Under the expanded DACA program, the applicant population pool would be expanded to include young people who came to this country before turning 16 years old and entered the USA before  January 1, 2010, and extend the period of DACA and work authorization from two years to three years.  Also under the expanded DACA program, an applicant does not have to prove they were under the age of 31 years when the existing DACA program was first announced on June 15, 2012.

The Deferred Action for Parental Accountability also known as DAPA is a new program that would allow parents of U.S. citizens and lawful permanent residents who entered and have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years provided that they pass required background checks.

The expanded DACA program was set to start on February 18, 2015 and the DAPA program later in the year.  However, on February, 16, 2015, a federal district judge, citing procedural grounds, stunned the Obama Administration by granting an injunction and halting the implementation of both programs.

The US Supreme Court last month heard arguments regarding the constitutionality of the Obama’s executive actions on immigration and a decision by the court is expected in the next couple of months.

In this article, I will discuss the requirements for the existing DACA program and the expanded DACA program.

Existing DACA program

On June 15, 2012, former Secretary of Homeland Security Janet Napolitano announced a new program called Deferred Action for Young Childhood Arrivals, also known as DACA, which gives certain undocumented immigrants who came to the United States as children before age 16 and who meet other key requirements the opportunity to be considered for deferred action.  Thousands of DACA immigrants have been renewing their DACA status after their initial application was approved.

DACA applicants must have entered the USA illegally before June 15, 2012.  If they entered the USA  legally, their  lawful immigration status must have expired before June 15, 2012.

Deferred action is a discretionary determination made by Department of Homeland Security to defer removal action of an individual as an act of prosecutorial discretion.  However, deferred action does not confer lawful status upon an individual, nor can one adjust to lawful permanent resident status directly by way of their DACA status.

DACA applicants who meet all the requirements are eligible to receive deferred action for a period of two years subject to renewal and work authorization if they can establish economic necessity.

Applicants may submit an application under the existing DACA program for consideration of deferred action if they:

1. Were under the age of 31 as of June 15, 2012; (no longer required for expanded DACA)

2. Came to the United States before reaching your 16th birthday;

3. Have continuously resided in the United States from June 15, 2007 to the present time;

4. 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;

5. Are 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

6. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not pose a threat to national security or public safety.

These requirements must be met for consideration of deferred action for childhood arrivals. The Department of Homeland Security, (DHS), retains the ultimate discretion on whether deferred action is appropriate in any given case.

For the expanded DACA program, the requirements are essentially the same as the requirements for the existing DACA program with a couple of changes. The age cap requirement of being under 31 years old as of June 15, 2012 has been removed.  The continuous residence requirement from June 15, 2007 to present has been changed to January 1, 2010 to present.

Applicants for the existing and expanded DACA programs are ineligible to apply if they have committed a felony, or one misdemeanor considered to be a “significant misdemeanor,” such as domestic violence, sexual abuse, burglary, illegally having or using a gun, selling drugs or driving under the influence, or  three misdemeanors or otherwise pose a threat to national security or public safety.

To illustrate further, an undocumented immigrant with a DUI conviction will not be eligible for DACA because such conviction will considered a significant misdemeanor.  In this situation, I highly recommend consulting with an experience immigration attorney as soon as possible about post-conviction relief options.

Even though undocumented immigrants are not able to apply for the expanded DACA program or prepare an application at the present time, they can start preparing right now by collecting documents to prove that meet the expanded DACA requirements.  Undocumented immigrants who meet the requirements for the existing DACA program can still apply for deferred action under this open program.

Checklist of Documents for both the Existing DACA and Expanded DACA programs

1. Proof of Identity

Applicants must prove their identity and meet certain age requirements.  Applicants under the existing DACA program must prove that they were under age 31 when the program was first announced on June 15, 2012. This is not required for the expanded DACA program.

Sample documents to prove identity and age document include:

Birth Certificate

Passport

(expired and current)

Matricula Consular

(expired and current)

Any other official photo ID

2. Proof of Age

Sample documents to prove that you entered the United States before age 16 include:

I-94, Visa, Border Crossing Card

School records / School ID Card

Vaccination Records

Medical Records

Pay Stubs

Rental Receipts

3. Proof that applicants under the Existing DACA program have maintained continuous residence in the US from 6/15/2007 to Present

Applicants under the existing DACA program must prove that they have continuously resided in the USA from June 15, 2007 to present.  Under the expanded DACA program, applicants must prove they have maintained continuous residence in the USA from January 1, 2010 to present.

Sample documents to prove continuous residence include:

School records

U.S. Military personnel records

Income tax returns/tax transcripts

Pay stubs, W-2 forms

Employment letter

Medical insurance

Vaccinations

Doctor visits

Dental records

Hospital records

Rental agreements

Bank statements

Credit card records

Collection notices

Online purchase receipts

Money transfer receipts (e.g. Western Union, MoneyGram, etc.)

Religious records

Marriage certificate

Divorce certificate

Children birth certificates

Children medical records

Children day care receipts

Gas utility

Electric utility

Phone service

Car payments

Car insurance

Mortgage payment receipts

Veterinarian records for your pet

Travel Records

Dated photographs

Facebook check-ins, tweets

Netflix records

Library card records

Gym membership records

Video store records

4. For the Existing DACA program and Expanded DACA program, applicants must prove that they were  physically present in the USA on June 15, 2012

Sample documents to prove that Applicants were physically present on or around June 15, 2012

Purchase receipts which contain applicant’s name

Bank statement showing ATM transactions

Paystubs or official time cards

Official Religious documents

School records

Rent receipts

Medical receipts

Date-stamped photos taken within the U.S.

5. Proof of Education /Military Status

You must prove you are in school, graduated from high school, have a GED, or have been honorably discharged from the military.

Proof of school enrollment (i.e. current transcript, proof of school registration)

High school diploma

GED certificate

Military discharge documents

The above list of documents are provided as samples and not meant to be an inclusive list to prove each Existing DACA or Expanded DACA requirement.  Other documents not mentioned on the list may be used as well.

Follow us for the latest developments concerning the Supreme Court decision on the expanded DACA/DAPA programs.

For more information please feel free to contact Raul Ray, Attorney at Law, at Law Offices of Raul Ray,

(408)279-5793, 1671 The Alameda, Suite 200, San Jose, CA  95126.  Email: raulray@deportationattorney.com

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