Law Offices of
Ana Maria Schwartz
Immigration Law

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DACA Overview

Deferred Action for Childhood Arrivals ("DACA")

The information below does not establish an attorney-client relationship and does not provide legal advice.  Always consult with an attorney or accredited representative in order to see how complicated immigration laws will be applied to your particular situation. Every case will be different and every person who thinks they may be eligible for DACA should consult with an attorney or accredited representative to be certain.  

Deferred Action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion.  Deferred action does not confer lawful status upon an individual.  In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence.  Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate "an economic necessity for employment."  DHS can terminate or renew deferred action at any time at the agency's discretion.

You may request consideration of deferred action for childhood arrivals if you:

1) Were under the age of 31 as of June 15, 2012;

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

3) Have continuously resided in the United States since June 15, 2007, up to the
present time;

4) Were continuously 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) Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;

6) 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

7) 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. 

People who qualify for deferred action obtain it for a two year period, subject to renewal, and are eligible for work authorization.  If USCIS decides to defer action in your case and you want to travel outside of the United States, you must apply for Advance Parole and pay the applicable fee.  Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes.  

A brief, casual, and innocent absence from the United States will not interrupt your continuous residence.  If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

1) The absence was short and reasonably calculated to accomplish the purpose for the absence; 

2) The absence was not because of an order of exclusion, deportation, or removal; 

3) 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 

4) The purpose of the absence and/or your actions while outside of the United States  were not contrary to law.

Deferred action does not provide a path to permanent residence status or citizenship.  It is not open to immediate relatives of those who do qualify, including dependents.  

Individual whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE.  The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.  The above information sharing policy covers family members and guardians, in addition to the requestor.  The policy may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil or criminal matter.  

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1) Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,

2) If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days.  The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

The decision whether to defer action on a particular case is an individualized, discretionary one that is made tang into account the totality of the circumstances.  

A minor traffic offense will not be considered a misdemeanor for purposes of this process.  However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.  
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