On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several criteria may request consideration of deferred action for a period of 2 years, which can be renewed. They may also request permission to work in the United States.
Deferred action means that legal actions against the person are temporarily put on hold if they meet the criteria, for as long as they meet them. The lack of legal action against a person does not give a person any legal status. For example, DACA is not a visa, DACA is not a green card, and DACA is not American citizenship nor naturalization.
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On Aug. 30, 2022, Department of Homeland Security published the DACA Final Rule, with the intent to preserve and fortify the DACA policy. This rule, which puts into effect regulations at 8 CFR 236.21-236.25, rescinds and replaces the DACA guidance set forth in the 2012 Memorandum issued by Secretary of Homeland Security Napolitano.
DACA requests are submitted to U.S. Citizenship and Immigration Services (USCIS), which have sole authority to determine if all criteria were met in order to approve the DACA request. All of the following criteria must be met for the DACA request to be approved:
The person was under the age of 31 as of June 15, 2012 (that is, the person was born on or after June 16, 1981)
The person came to the United States before reaching their 16th birthday
The person has continuously resided in the United States since June 15, 2007, up to the time of filing their request for DACA with USCIS
The person was physically present in the United States on June 15, 2012, and at the time of filing their request for DACA with USCIS
The person had no lawful immigration status on June 15, 2012, and at the time of filing their request for DACA with USCIS
The person never had a lawful immigration status on or before June 15, 2012, or
Any lawful immigration status or parole that they obtained had expired as of June 15, 2012, and
Any lawful status that they had after June 15, 2012, expired or otherwise terminated before they submitted their request for DACA with USCIS
The person is currently enrolled in school, has graduated or obtained a certificate of completion from high school, has obtained a General Education Development (GED) certificate, or is an honorably discharged veteran of the United States Coast Guard or armed forces of the United States; and
The person has not been convicted of a felony, significant misdemeanor (that is, a misdemeanor as described in 8 CFR 236.22(b)(6)), or 3 or more other misdemeanors, and do not otherwise pose a threat to national security or public safety
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Approval of a DACA request depends on proper documentation (as much as possible). Documents proving each and every one of the criteria above most be provided to USCIS to have a chance of your DACA request being approved. The lack of proof for even one of the above-mentioned criteria, could act as the basis for denying the DACA request.
If your DACA request has been denied, you may not reapply and you may not appeal the decision. In most cases, USCIS will not contact Immigration and Customs Enforcement (ICE), yet may do so if USCIS suspects that denial, fraud, a threat to national security, or public safety concerns may be involved.
An approved DACA request does not automatically mean you can work in the United States. Thus, you must apply to be granted permission to work within the United States in addition to your DACA request. Permission to work is a separate document as it is a separate process and separate application process. Non-citizens who have permission from DHS to work can apply for a Social Security number.
A person can request a review of their denied DACA request based on administrative error. Using the Service Request Management Tool process, the person can make the claim that they have met all of the DACA guidelines, and they believe USCIS denied they request because of an administrative error.
For Example:
USCIS believes they abandoned their case by not responding to a Request for Evidence (RFE), and they believe they did respond within the required time; or
USCIS mailed the Request for Evidence (RFE) to the wrong address, even though they had submitted a AR-11 Change of Address Form, or changed their address online at www.uscis.gov before USCIS issued the Request for Evidence (RFE).
Traveling from and to the United States while waiting for a DACA application to be approved or while being of approved DACA, requires additional approval. This means that leaving the United States nor coming back into the United States is obvious even with an approved DACA request. Make sure to obtain permission to travel from and to the United States before doing so, by contacting USCIS and filing a Form I-131.
If DACA has relevance to you in any kind of way and/or extent, make sure to acquire the professional legal services of a U.S. immigration attorney.
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