FOR LAWYERS

Legal Guide to DACA

By
Boruch Burnham, Esq.
/
September 27, 2023

The Deferred Action for Childhood Arrivals (DACA) program (also known as the DREAMers program) is a US immigration policy that allows certain undocumented immigrants who entered the US as children to receive a renewable two-year period of deferred action from deportation and to be eligible for a work permit. In this guide, we will discuss the eligibility criteria, processes, and filing requirements for applying for initial and renewal deferred action requests under the DACA program.

Before we begin, it is important to note that due to legal challenges to the DACA program, the United States Citizenship and Immigration Services (USCIS) is currently accepting, but not processing new DACA requests. However, it is still processing and granting renewal requests for DACA and work permits, as well as grants of advance parole (discussed below).

Benefits of DACA 

While DACA has a number of benefits, it is not a path to US citizenship or permanent residency. Other than relief from deportation, a DACA authorization provides benefits can include: 

Work Authorization: DACA recipients are eligible to receive an Employment Authorization Document (EAD). EADs are commonly referred to as work permits, which allow DACA recipients to work in the US on a temporary basis legally. 

 Eligibility for Advance Parole: In the context of DACA, Advance Parole refers to temporary permission granted by the USCIS to DACA recipients to travel outside the US for specific limited reasons and return without losing their DACA status (discussed further below).

A Social Security Number: Having a social security number (SSN) has many advantages, including eligibility to receive certain social security benefits, participate in Medicare, and claim the earned income tax credit (EITC), which can be major benefits for lower-income earners. Furthermore, some employers require that their employees have an SSN (although many will only require that they have an individual taxpayer identification number (ITIN))

Additional Benefits: While DACA recipients are not eligible for federal financial aid, many can still enroll in colleges and vocational schools. Some states even offer in-state tuition rates to DACA recipients, and private scholarships and state-based aid are available in some cases. Depending on the state, additional benefits may be available to DACA recipients, including driver's licenses, professional licenses, and access to certain state-funded social services.

Eligibility for DACA 

To be eligible for DACA, you must meet several criteria, including: 

  • You must have been under 31 as of June 15, 2012.
  • You must have come to the United States before your 16th birthday.
  • You must have continuously resided in the U.S. since June 15, 2007.
  • You must have been physically present in the United States on June 15, 2012 (this is when the DACA program was originally announced) and at the time of making your request for consideration of deferred action with USCIS.
  • You must not have had lawful immigrant status on June 15, 2012, or at the time you filed your DACA request. 
  • You must be currently in school, have graduated from high school in the United States, have a GED, or be an honorably discharged veteran of the Coast Guard or armed forces of the United States.

In addition to these criteria, you must not have been convicted of a felony or certain classes of misdemeanor(s), and you must not pose a threat to national security or public safety.

Documentation, Forms, and Fees. 

The following documentation should be submitted to establish your identity and ensure that you meet the eligibility criteria:

  • Proof of Identity: To prove your identity, you may use a passport or national identity document from your country of origin, a birth certificate with photo identification, a school or military ID with a photo, or any U.S. government immigration or other document bearing your name and photo.
  • Proof of entry before age 16 and proof of physical presence: A passport with an admission stamp, school records, rent receipts, or utility bills can serve as proof that you arrived in the U.S. before your 16th birthday. You can use similar documentation, as well as employment records, to establish your presence in the US on June 15, 2012, and your continuous residence there from June 15, 2007, up until the time you file your DACA request.
  • Proof of lack of lawful immigration status on June 15, 2012, and at the time you file your DACA request: This can include copies of Form I-94, Form I-95, or Form I-94W, (which are arrival/departure/crewman's landing records for non-immigrant visitors), or final order of exclusion, deportation, or removal from the US
  • Educational or military status: To prove your educational status, you can use school records, a US high school diploma, or a GED certificate. If you're relying on military service to obtain your DACA status, you can submit a Form DD-214 or official documentation showing that you were honorably discharged from the US Armed Forces or Coast Guard.

The following forms should be submitted with your DACA application: 

  • Form I-821D, which is the primary form for applying for DACA. It gathers details about your background, education, and employment.
  • Form I-765, which is the application for obtaining an employment authorization document, and Form I-765 WS, which is the worksheet that must accompany Form I-765 applications. 
  • Form G-1145 (Optional): Filing this form enables USCIS to notify you via email or SMS about the receipt of your application. Note that USCIS does not charge any additional fees for this service. 

Both initial and renewal applications must be accompanied by an application fee of $495. This fee consists of a $410 filing fee and an $85 biometrics fee. Note that you'll also have to attend a biometrics appointment as part of the process. While initial applications must be submitted through a USCIS Application Support Center (ASC), renewal applications may be submitted online. 

Travel Restrictions and Advance Parole

It's crucial to be aware that leaving the country can jeopardize your DACA status and make you ineligible to reenter the country unless the USCIS has granted you Advance Parole. 

The USCIS grants Advance Parole for limited reasons, including: 

  • Humanitarian reasons: This includes travel to get medical treatment, attend a funeral for a family member, or visit a sick relative.
  • Educational reasons: This includes travel for a semester abroad program or to conduct academic research.
  • Employment reasons: This includes travel for an overseas assignment, interview, conference, training, or meeting with clients.

Navigating the DACA application process can be daunting, with numerous requirements and deadlines to meet. A qualified immigration attorney can help ensure that you meet all eligibility criteria and submit a complete and accurate application. Through AAL's directory, you can find numerous skilled attorneys with extensive experience in immigration law to help guide you through the complex DACA process.

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