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DACA offers work permit and deferral of deportation threat to some

Successful DACA applications receive a two-year reprieve from the threat of deportation and the right to work legally during that time.

Since June 2012, the Department of Homeland Security or DHS through its U.S. Citizenship and Immigration Services or USCIS has accepted applications for the Deferred Action for Childhood Arrivals program, known as DACA. DACA offers a two-year deferral of the threat of deportation to certain undocumented immigrants who were brought into the U.S. as children, consider it home and have shown themselves to be contributing members of society.

In addition to the two-year reprieve, successful applicants are granted work permits during that time.

DACA is not a grant of lawful status; rather it is an exercise of prosecutorial discretion in which the federal government has formally chosen not to threaten deportation for at least two years to successful applicants. Instead, it has announced an intention to focus its resources instead on deportation of undocumented immigrants who threaten public safety or national security.

When the two-year deferral period is approaching expiration, a DACA participant may apply for renewal for another two years.

The qualifications for DACA (and for renewal) are:

  • Under age 31 on June 15, 2012
  • At least 15 at time of DACA application (unless facing certain removal proceedings)
  • Came to the U.S. before age 16
  • Continuous residence in the U.S. since June 15, 2007
  • Physical presence in the U.S. on June 15, 2012, and at the time of DACA application
  • No lawful status on June 15, 2012
  • Meet certain educational or military requirements
  • No significant criminal history and not a threat to public safety or national security

Filing a DACA initial or renewal application is quite complicated and relatively expensive with only narrow chance of a fee waiver, so when preparing the application it is a good idea to obtain the assistance of an attorney with DACA experience. In addition, USCIS requires elaborate documentation and there is normally no appeal from a denial, which is considered discretionary with the agency. (Administrative error by the agency is a limited basis for review.)

In November 2014, President Barack Obama announced an executive action to expand DACA eligibility and lengthen the deferral period to three years. However, in February 2015, a U.S. District Court judge in Brownsville, Texas, issued a preliminary injunction that ordered the federal government to stop administering the expanded DACA. This order was part of a lawsuit by a coalition of states attempting to stop the president's DACA expansion. The injunction remains in place while tied up on appeal, but USCIS is still accepting applications and renewals under the original program terms.

This article just skims over the surface of this very complex program. There are aspects of the law that are too complicated for explanation here, so it is important that if you or a loved one may be eligible for DACA or approaches renewal, to talk to an immigration lawyer for guidance and representation. Your rights are too important and you may only get one shot at the application.

With seven offices in California and Utah, the attorneys at Wilner & O'Reilly, APLC, represent DREAMers and other individuals, families and business facing immigration issues locally, nationally and internationally.

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