UPDATE: Deferred Action for Childhood Arrivals (“DACA”)

By Richard Kistnen, Esq.

This is an update on the Deferred Action for Childhood Arrivals (“DACA”) program.  As the forms are set to expire at the end of February 2013, and there is no indication whether the program will be extended, it is timely for those who are interested in filing for DACA to do so immediately.
In the five months that the DACA program has existed (August 15, 2012 – December 13, 2012), there have been 367,903 applications submitted.  Of those, 355,889 have been approved.  Cases which were audited for review in that time totaled 157,151.  Of those cases selected for review, 102,965 were approved.  These numbers translate to a roughly overall 97% approval rate for DACA applications.  Therefore, it appears that the administration’s goal is to grant those qualifying applicants an opportunity to become contributing members of American society.
The program aims to defer removal action for a period of two years, subject to renewal.  The benefit of this program is that a person who has had a removal proceeding deferred is allowed to seek authorization to remain within the United States (generally, pursuant to employment authorization) without fear of removal during the period of deferred action.  That is, deferred action gives the person a period of respite to find a way to obtain some kind of legal status within the United States.  This measure, however, DOES NOT change a person’s unlawful status within the United States.
The application costs $465.00 to file.  To qualify to apply for deferred action pursuant to this Executive Order, the applicant must: (1) have been under the age of 31 on June 15, 2012; (2) came to the United States before reaching your 16th birthday; (3) have continuously resided within the United States since June 15, 2007 through the time of application; (4) have been physically present within the United States on June 15, 2012 AND at the time this present application is being made; (5) entered the United States without inspection before June 15, 2012 OR your lawful immigration status expired as of June 15, 2012; (6) currently be enrolled in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or be an honorably discharged veteran of the United States Armed Forces; and (7) have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.  Some important caveats which apply to the age  qualifications for filing include the following: (A) if the applicant has never been in removal proceedings, OR such proceedings have been terminated before filing this application, the applicant must be AT LEAST 15 years old; (B) if the applicant is currently in removal proceedings, has a final removal order issued against him or her, or have a voluntary departure order, AND are not in immigration detention, the applicant may file this application even if under the age of 15.
An important caveat exists to the applicant’s continuous presence within the United States.  If a qualifying applicant has traveled outside of the United States prior to August 15, 2012, USCIS will review the applicant’s continuous presence on a case by case basis.  Generally, it appears that “brief, casual and innocent” travel which occurred prior to August 15, 2012 will not disrupt an applicant’s continuous presence for purposes of this application.  Any travel before August 15, 2012 by an applicant that was for an extended period of time, pursuant to an order of exclusion, deportation or removal does disrupt continuous presence (and, thus, disqualifying the applicant from participation in this program).  ANY travel outside of the United States by an applicant AFTER August 15, 2012 disrupts continuous presence, and that application will be denied.  In the instance an application is granted, the applicant may travel outside of the United States ONLY AFTER applying for AND receiving advanced parole from the USCIS.
For those who have thought about applying for DACA, do not hesitate.  Again, the forms expire February 28, 2013.  Unless the administration issues an order extending the program, it may no longer be available after this date.  Information concerning the Consideration of Deferred Action for Childhood Arrivals application can be found at the USCIS website, www.uscis.gov.  If you have questions concerning this application or would like assistance in completing the application, as well as many other legal matters, do not hesitate to contact the Law Office of Richard Kistnen, (718) 738-2324.