On June 15, U.S. Department of Homeland Security Secretary Janet Napolitano made a significant announcement: On Aug. 15, U.S. Citizenship and Immigration Services (USCIS) would begin implementing the Obama administration’s executive order regarding deferred-action status and a two-year employment-authorization card (a work card) for certain qualifying young foreign nationals.
Community and immigration rights groups, as well as immigration attorneys, have been deluged with requests for assistance with this process. Approximately 1.4 million undocumented children currently are in the United States, according to statistics on the American Immigration Lawyers Association’s website. As of Oct. 15, the USCIS has received 179,794 deferred action applications, but only 4,591 have been approved, according to the USCIS website.
The main benefits of deferred action for childhood arrivals (DACA) is that, if the DACA application is approved, it stays removal proceedings and, if the applicant files an additional application for an employment card that is approved, USCIS will issue an employment-authorization card. With a USCIS employment-authorization card, the applicant may obtain a Social Security card and a driver’s license.
The federal-issued Social Security card allows lawful employment and receipt of benefits paid into the system, such as unemployment compensation, Social Security and Medicare. It also protects foreign nationals from potential payday abuse by employers who hire workers and pay them off the books. A state-issued driver’s license allows a person to drive lawfully and to obtain auto insurance. Licensure protects the driving public from unsafe and uninsured drivers.
DACA does not grant lawful immigration status, but it does stop the clock on the accrual of U.S. unlawful immigration status. For those applicants who have no unlawful stays in the United States in excess of 180 days, the government will not impose the unlawful-presence ground of ineligibility for nonimmigrant or immigrant visas.
DACA does not lead to temporary or permanent residency, nor does itgrant benefits to the applicant’s family members. DACA does not authorize out-of-country travel. However, with a Social Security card and a driver’s license, the foreign national has a way to prove his identity and right to participate in the U.S. economy and education systems. For young people living in the United States since childhood, a work card or a driver’s license does offer them a piece of the American dream.
Many undocumented youth will not qualify for this relief, and many are still waiting to obtain the required documentation and filing fees. Others hesitate to apply for fear that they will subject either themselves or family members to deportation if they do not qualify or if Obama is not re-elected.
Attorneys need to be aware of a number of issues when advising a client whether to apply. Only those who meet all of the following criteria are eligible for this discretionary relief: 1. They are under the age of 31 as of June 15, 2012. However, those under the age of 15 cannot apply unless they are in immigration proceedings; 2. They entered the U.S. under the age of 16 unlawfully, or their lawful status now has expired; 3. They resided continuously in the U.S. from June 15, 2007 to the time of filing; 4. They are currently in school, have graduated from high school or obtained a GED certificate, or are honorably discharged veterans of the U.S. Coast Guard or U.S. armed forces; 5. They have not been convicted of a felony offense; a significant misdemeanor offense; three or more nonsignificant misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of conduct; or otherwise pose a threat to national security or public safety.
Given those criteria, who should not apply? Obviously, those who do not meet each and every ground of eligibility listed above should not, nor should those who cannot obtain credible documentation of age, admission into the country, residence, education and good moral character.
All applicants will be fingerprinted and will need to show that any past convictions are not disqualifying convictions. These applicants should obtain certified copies of all criminal records; a competent immigration attorney should analyze them under state law as well as federal immigration law before filing a DACA application on the individual’s behalf.
Persons who have prior deportation orders or who are in pending removal proceedings are eligible for DACA unless the grounds for those proceeding involve a disqualifying conviction. It’s extremely important that lawyers realize that any applicant who has a disqualifying conviction and applies for DACA will be referred to U.S. Immigration & Customs Enforcement (ICE) for proceedings.
A disqualifying felony offense is a federal, state or local offense punishable by imprisonment for more than one year. Caution: Some state misdemeanors may be classified as felonies for DACA if they result in a sentence of more than one year.
A significant misdemeanor offense includes any federal, state or local criminal offense punishable by up to one year of imprisonment. It also includes an offense not punishable by imprisonment that involves the following: violence, threats, or assault; domestic violence; sexual abuse or exploitation; burglary, larceny or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution for leaving the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking or unlawful possession of drugs.
Three or more nonsignificant misdemeanors also disqualify an applicant if they do not arise out of the same act, omission or scheme of conduct. Nonsignificant misdemeanors presumably are any not included on the list of significant misdemeanors above. Caution: A lawyer must analyze traffic offenses.
Expunged and juvenile offenses can pose a barrier to applicants. Even if a potential applicant has no criminal convictions, if background checks or other information reveal that he poses a threat to public safety or national security, the application will not be approved. Applicants with gang memberships or participation may not qualify, unless they renounce those affiliations, can show that their prior involvement was coerced or limited, and they participated in drug/alcohol programs or anger management classes. Because DACA is a discretionary grant, the USCIS will look at the totality of the circumstances in such instances.
A number of federal crimes do not bar application but do bar permanent residency under current immigration law, such as illegal re-entry under 8 U.S.C. §1326, false claims to U.S. citizenship under Immigration & Nationality Act §212(a)(6)(ii)(I), and fraudulent use of Social Security cards under 42 U.S.C. §408(a(7)(A). It’s impossible to know whether DACA applicants who disclose such crimes on an application for deferred action will be ineligible for immigration benefits if Congress later enacts various proposed immigrations reforms.