Deferred Action for Childhood Arrivals
On June 15, 2012, the Obama Administration announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of 2 years, subject to renewal, and would then be eligible for work authorization.
Deferred action means that the Department of Homeland Security (DHS) agrees not to start deportation proceedings against an individual. If an individual is currently in the process of deportation, DHS agrees to drop their demand for deportation. This policy is called Deferred Action for Childhood Arrivals, or DACA.
Once deferred action is granted, people may seek employment authorization, but it does not grant any kind of permanent residence, citizenship status, or amnesty. Also, until an individual is granted deferred action, DHS may initiate deportation proceedings at any point of the application process.
DACA has had a complicated history. In 2017, the Trump Administration decided to end DACA. Some courts issued orders stopping the Trump Administration from ending DACA, and in June 2020 the United States Supreme Court decided that the government failed to follow the correct legal process to end DACA. On July 28, 2020, the acting Secretary of the Department of Homeland Security stated that the agency would process renewal applications but would refuse to take brand new applications. However, in December 2020, another court issued an order requiring the government to continue taking new applications, and once the Biden Administration took office in January 2021, it pledged to defend DACA.
On July 16, 2021, a federal District Court in Texas issued an order finding that DACA is illegal. The judge “stayed” his order from going into effect against persons who had DACA as of the date of his decision, meaning that persons who currently have DACA can seek to renew their DACA, but USCIS cannot grant DACA to new applicants. The government has appealed the judge’s decision to the Fifth Circuit Court of Appeals, and that court could reverse the District Court’s decision.
On September 28, 2021, the government released a proposed regulation concerning DACA, which could have an impact on whether courts find DACA to be lawful or not. Comments are due on the proposed regulation on November 29, 2021, and the final rule will be issued after that date. If it goes into effect, the new regulation will change some DACA procedures.
The government is accepting all DACA applications, but it is not processing applications filed by persons seeking DACA for the first time. It is processing applications for DACA renewals. Depending on what happens with the government’s proposed regulation and the lawsuit concerning DACA, the government might start accepting new DACA applications again in the future. If it becomes possible again in the future to seek DACA for the first time, the government has said that a person would qualify for DACA under its proposed regulation if they:
- Came to the United State before reaching their 16th birthday;
- Continuously resided in the United States for at least five years before June 15, 2012 and were present in the United States on that date;
- Are in school, have graduated 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;
- Have not been convicted of a felony, certain types of misdemeanors, or three or more other misdemeanors not described in the proposed rule, and do not otherwise pose a threat to national security or public safety; and
- Were not above the age of 30 on June 15, 2012;
For individuals who (1) currently have DACA:
- Fill out a renewal application, form I-821D, in black ink, or typed.
- Fill out forms I-765 and I-765WS, in black ink, or typed.
- Get your passport-style photos taken. The application requires two passport-style photos, attached to the application. You can get these photos taken at Rite-Aid, Walmart, and other stores with photo services;
- Make a copy of each side of your Employment Authorization Document, even if it’s expired. You will need to submit this with your application;
- Get a check or money order for the filing fee of $495, and the check or money order must be made out to the “U.S. Department of Homeland Security”
- If you have any new criminal records since your last DACA application or renewal, including traffic tickets, call the University of Idaho Immigration Clinic: Geoffrey Heeren (email: firstname.lastname@example.org; mobile: 208 885-6110)
- Once your application, documentation, and passport photos are put together and ready to go, make a copy of the entire filing for your records;
- Mail the filing to:
|Idaho Residents use the Dallas Lockbox:
P.O. Box 660045
Dallas, TX 75266-0045
|Washington Residents use the Chicago Lockbox:
P.O. Box 5757
Chicago, IL 60680-5757
If you reside in a third state, please call the Immigration Clinic or check the filing address here.
- For more detailed information and FAQs on DACA renewals, from the National Immigration Law Center website.
- A printable checklist of required documents, from the Immigrant Legal Resource Center checklist.
- Initial applications and examples of the types of evidence that are accepted, from the Northwest Immigrant Rights Project checklist.
DACA Frequently Asked Questions
What does “deferred action” mean?
Deferred action is a discretionary grant of relief by DHS. It can be granted to individuals who are in removal proceedings, who have final orders of removal, or who have never been in removal proceedings. Individuals who have deferred action status can apply for employment authorization and are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or to citizenship and it can be revoked at any time.
Who is eligible for DACA relief?
The government has proposed a new regulation for DACA so requirements for DACA could change somewhat in the future. Currently, individuals who meet the following criteria can apply for DACA:
- are under 31 years of age as of June 15, 2012;
- came to the U.S. while under the age of 16;
- have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five year period, brief and innocent absences from the United States for humanitarian reasons will not be included);
- entered the U.S. without inspection before June 15, 2012, or individuals whose lawful immigration status expired as of June 15, 2012;
- were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
- are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
- have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety.
Applicants will have to provide documentary evidence of the above criteria. In addition, every applicant must complete and pass a biographic and biometric background check
What is a significant misdemeanor?
DHS will deem as “significant” any misdemeanor involving any of the following, regardless of the sentence imposed:
- domestic violence;
- sexual abuse or exploitation;
- unlawful possession of firearms;
- driving under the influence; or
- drug distribution or trafficking.
In addition, any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to an immigration detainer, will be deemed a significant misdemeanor.
How old do I have to be to apply for deferred action?
In general you must be at least 15 years of age at the time you apply. The exception to this rule is if you are in removal proceedings, have a final order of removal or have an order of voluntary departure, then you can seek DACA even if you are below the age of 15.
I am not currently in school, but would like to re-enroll in high school. Could I qualify?
Yes, to be considered “currently in school” USCIS will look to whether you are enrolled at the time you submit your application.
What types of school qualify under the DACA program?
Note, that you may be eligible even if you are enrolled in a program to obtain a GED or if you are enrolled in vocational school. The following information is pasted directly from the USCIS website:
To be considered “currently in school” under the guidelines, you must be enrolled in:
- a public or private elementary school, junior high or middle school, high school, or secondary school;
- an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement;
- or an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.
Will a brief interruption in the requirement to be in the U.S. continuously from June 15, 2007 to July 15, 2012 affect my eligibility for deferred action?
For purposes of calculating this five year period, absences from the U.S. that are brief, casual and innocent will not be included. Absences will be considered to be brief, casual and innocent if:
- it was before August 15, 2012;
- it was short and reasonably calculated to accomplish the purpose of the absence;
- it was not because of an order of exclusion, deportation or removal;
- it was not because of an order of voluntary departure, or an administrative grant of voluntary departure before an applicant was placed in removal expulsion, deportation or removal proceedings;
- the purpose of the absence, or an applicant’s actions while outside of the U.S., were not contrary to law.
Where and how do I apply for renewal of my deferred action?
What forms will I need to submit?
In the future, the forms required for DACA may change. For example, under the government’s proposed regulations, it is not necessary to submit an employment authorization application with a DACA application. But for now, to seek a DACA renewal, you must submit the following or your application will be returned to you:
- Form I-821D Consideration of Deferred Action for Childhood Arrivals;
- Form I-765 Application for Employment Authorization Document;
- Form I-765 WS –EAD economic need supplement form;
- $495 fee
Additionally, you will need to submit documentary evidence that you meet all of the criteria to qualify for deferred action (age, entry date, continuous presence, educational or military documentation, etc.).
How much does it cost to seek DACA?
The total fees for the application (including an application for an Employment Authorization Document and background check) are $495.
What if I can’t pay the fees?
There is no fee waiver available for DACA. There is a fee exemption under very limited circumstances for individuals who are in foster care, are disabled, or have medical care related debt and whose income is below 150% of the poverty level.
If I am granted deferred action, can I be employed?
DACA applicants can also seek employment authorization. In order to obtain employment authorization, you must include an application for an Employment Authorization Document (EAD) in your application, which, when granted, will be valid for a period of two years and may be renewed. You must wait until the EAD is issued prior to accepting employment.
If I am granted deferred action, does that mean I have acquired legal status?
The grant of deferred action does not grant legal status to an applicant. In addition, it does not cure such applicant’s previous periods of unlawful presence. However, an applicant who is granted deferred action will not be deemed to be accruing unlawful presence in the U.S. during the time period when deferred action is in effect.
If I am granted deferred action, can I travel outside the United States?
You can only travel outside the U.S. if you apply for, pay the fee ($575) and receive advanced parole after being granted deferred action and before traveling. Generally, advanced parole is only granted for humanitarian reasons, educational, or employment reasons. If you leave the U.S. without advanced parole being granted or before a decision has been made on your deferred action application, you will not be permitted back into the United States.
If my application for deferred action is denied, can I file an appeal?
No. A denial of an application for deferred action cannot be appealed though you could file again (and pay the fee again.)
Is there any risk in applying for deferred action?
Yes, you should only apply after consulting with a qualified attorney. If you are here unlawfully and USCIS or ICE finds that you do not meet the criteria for deferred action, you may be placed in removal proceedings. Additionally, even if you are granted deferred action, the status is completely discretionary and can be revoked in the future.
Is the passing of the DREAM Act still necessary?
Yes. Deferred action is only a temporary measure and is not intended to, and does not grant, legal status to the individuals that the DREAM Act seeks to benefit. Given that only Congress can confer the right to legal permanent resident status or citizenship, it is essential that we continue to work towards the passage of the DREAM Act.