Deferred Action For Childhood Arrivals, Or “DACA”
Who Is Eligible for DACA
Under the new DACA program effective in early 2015, you may apply for deferred action status if you:
- had not yet turned age 16 when you came to the U.S. to live
- have continuously lived (“resided”) in the U.S. since June 15, 2010 up to when you apply (excluding any brief, casual, and innocent departures)
- were physically present in the U.S. on June 15, 2012, and also at the time you apply for deferred action
- either entered the U.S. without inspection before June 15, 2012, or if you entered with inspection, your lawful immigration status (such as a visa or Temporary Protected Status (TPS)) had expired as of June 15, 2012
- are either in school now (unless absent for emergency reasons), have graduated or earned a certificate of completion from an accredited 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 present a threat to U.S. national security or public safety (such as by being a member of a gang).
You will, when it comes time to apply, need to supply proof of each item on this list. Under the original DACA program, you had to be under age 31 as of June 15, 2012 (that is, born after June 15, 1981). There is no more age limit under the new DACA program. Additionally, under the old program, you had to have been continuously living in the U.S. since June 15, 2007, instead of the new date, June 15, 2010. Persons affected by these rules should wait to apply for DACA until the new program goes into effect.
Who Is Ineligible for Deferred Action Status?
Eligibility depends on meeting each and every criterion listed above.
If, for example, you fit all the criteria but were already 17 when you came to the U.S. to live, you will not qualify. The same goes if you haven’t lived in the U.S. “continuously” for the required period but, for example, spent a few years in the U.S., a few years in your home country, and so forth. USCIS looks closely at whether the schools from which applicants claim to have graduated are in fact recognized, accredited (in most cases, public) schools.
The criminal grounds of ineligibility are especially challenging for some applicants; especially because the term “significant misdemeanor” is not one that has a long history in the immigration law, and thus has not often been applied to particular fact patterns by USCIS or the courts.
Whether someone has been convicted of a significant misdemeanor, USCIS will consider the total circumstances regarding the criminal behavior and make decisions on an individual basis. USCIS guidelines state that a significant misdemeanor is a crime punishable by five days to one year in jail regardless of the actual sentence imposed. A misdemeanor that includes any of the following offenses will be considered significant: burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence of drugs or alcohol (DUI or DWI); and drug distribution or trafficking.
But that’s not all. They may also include any other misdemeanor for which the applicant was sentenced to more than 90 days in prison, not including suspended sentences, pretrial detention, or time held on an immigration detainer. (And again, three or more misdemeanors of any sort are a disqualifier for deferred action status.)