General Q&A on Deferred Action for Childhood Arrivals (DACA)

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What is the Deferred Action for Childhood Arrivals (DACA) program?

• This program allows foreign nationals, who are currently inside of the United States, to apply for temporary work authorization and remain safe from removal/deportation proceedings.
• To qualify, the foreign national needs to meet the following criteria: (i) Applicant was present in the U.S. and has continuously resided in the U.S. since June 15, 2007; (ii) Applicant came to the U.S. before 16 years of age; (iii) Applicant was under 31 years of age as of June 15, 2012; (iv) Applicant had no lawful status on June 15, 2012; (v) Applicant is in high school, has an high school diploma, has a GED, or is currently in a GED program; and (vi) Applicant has not been convicted of a felony or a significant misdemeanor or three or more misdemeanors. A significant misdemeanor includes, but is not limited to possession of drugs, driving while intoxicated (DUI/DWI), burglary, domestic violence, etc.
• Note: As of January 9, 2018, DACA is no longer available for new applicants. However, if you currently have DACA, you can still apply to renew your DACA classification.

What documents are typically required for an I-821, Consideration of Deferred Action for Childhood Arrivals?

• Government filing fees
• USCIS Form I-821D, Consideration of Deferred Action for Childhood Arrivals
• USCIS Form I-765, Application for Employment Authorization
• USCIS Form I-765WS, Form I-765 Worksheet
• Passport-style photographs
• Marriage and/or Birth Certificates
• Proof of residence in the U.S.
• Proof of educational requirements
• Proof of good moral character

Additional documents such as criminal records, English translations, police clearance record, court records, etc. may be required. Please contact our office to discuss the specific documents that are required for your particular case.

Can my family member file for benefits under DACA?

Unfortunately, only the DACA applicant will be able to work in the U.S. with permission. Spouses and children will not receive any derivative benefits under the DACA program.

Can I obtain temporary travel authorization under DACA?

Previously, DACA beneficiaries were allowed to travel internationally by obtaining Advance Parole. However, the law has changed and DACA beneficiaries are no longer able to travel internationally. Domestic travel within the United States and its territories are permitted.

What happens if I marry a Lawful Permanent Resident?

Your Lawful Permanent Resident (“Green Card holder”) spouse can file an I-130, Petition for Alien Relative for you. However, spouses of Green Card holders cannot adjust status (obtain a Green Card) within the U.S. if they do not have lawful immigration status in the United States at the time that the petition is filed. This is very confusing to explain. DACA beneficiaries have an immigration classification that allows them to remain in the U.S. without fear of removal/deportation; however, DACA beneficiaries are not considered to have a valid immigration status.

What happens if I marry a U.S. Citizen?

Your U.S. citizen spouse can file an I-130, Petition for Alien Relative for you. However, your ability to obtain a Green Card inside the U.S. depends on whether or not you entered the U.S. legally during your last arrival. If you entered the country with inspection (legally), you can obtain a Green Card in the U.S. However, if you entered the country without inspection (illegally or without a visa or border crossing card), you will not be able to remain in the U.S. to obtain a Green Card.

What happens if I marry a U.S. Citizen, but entered without inspection?

This means that you will need to leave the U.S. and return with a valid visa, before you are given a Green Card. This is problematic because of the 3- and 10-year bar for unlawful presence. If you have been unlawfully present in the U.S. for over 6 months, but under 1 year, you will be barred from returning to the U.S. until you have been outside of the U.S. for at least 3 years. If you have been unlawfully present in the U.S. for more than 1 year, you will be barred from returning to the U.S. until you have been outside of the U.S. for at least 10 years. Most DACA beneficiaries have been unlawfully present for more than 1 year.

There are very few solutions to this problem. The THREE (3) most common solutions are:

(1) Your spouse will have to file an I-601A, Application for Provisional Presence Waiver on your behalf. Your spouse will have to demonstrate that s/he will suffer “extreme hardship” if you were unable to return to the United States after leaving the U.S. If this application is approved, you will be able to leave the U.S., obtain a visa abroad, and return to the U.S. to receive your Green Card.

(2) If your spouse or parent is an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve, or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, you may be able to file a Military Parole in Place application, which will allow you to obtain your Green Card without leaving the U.S.

(3) If the DACA beneficiary had an immigrant petition filed by a relative prior to April 1, 2001 under the LIFE Act (245i), s/he may be able to pay a $1,000 penalty and be able to adjust status inside the U.S. without having to obtain a visa abroad.

Why do I have to renew my Deferred Action for Childhood Arrivals (DACA) classification?

This temporary work authorization document (EAD) is only valid for TWO (2) years. DACA beneficiaries must renew and undergo a new background check (biometrics) to determine that s/he is still eligible for DACA classification.

Why documents are required for my Deferred Action for Childhood Arrivals (DACA) renewal application?

You will need to submit new government forms, a filing fee, TWO (2) passport photos, and proof of good moral character.

For more information on General Q&A on Deferred Action for Childhood Arrivals (DACA), a free consultation is your next best step. Get the information and legal answers you are seeking by calling (281) 777-1236 today.

To avoid having your case potentially denied, paying additional filing fees for the same application/petition, and/or spending months or years for a decision, please contact our office so we can help you with your case.