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FAQ: DACA

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Last updated JUNE 13, 2014  |  Download Adobe PDF icon  |  Versión en español


This FAQ answers questions mainly about applying for DACA for the first time.

A separate FAQ answers questions that are specifically about applying to renew DACA.


FREQUENTLY ASKED QUESTIONS

The Obama Administration’s Deferred Action for Childhood Arrivals (DACA)

On June 15, 2012, President Barack Obama announced that the U.S. Department of Homeland Security (DHS) would not deport certain undocumented youth who had come to the United States as children. Under a directive from the secretary of DHS, these youth may be granted a type of temporary permission to stay in the U.S. called “deferred action.” The Obama administration called this program Deferred Action for Childhood Arrivals, or DACA.

Deferred action granted under DACA is valid for two years and can be renewed for an additional two years. Currently, U.S. Citizenship and Immigration Services (USCIS) is accepting applications both from people who were previously granted DACA and now want to renew it and from people applying for DACA for the first time. Everyone who submits either an initial DACA request or a DACA renewal request must use the revised DACA application form (Form I-821D). (More specific information about the DACA renewal process is available from the National Immigration Law Center’s FAQ: Deferred Action for Childhood Arrivals Renewal Process.[1]) People who receive deferred action may apply for and obtain employment authorization.

WARNING: Do NOT take advice about your immigration case from a notary public or an immigration consultant. Contact ONLY a qualified immigration lawyer or an accredited representative for legal advice about your case. A directory of legal service providers in your area is available at www.weownthedream.org/legalhelp/.

What is deferred action?

Deferred action is a kind of administrative relief from deportation that has been around a long time. Through it, DHS authorizes a non–U.S. citizen to remain in the U.S. temporarily. The person may also apply for an employment authorization document (a “work permit”) for the period during which he or she has deferred action.

Deferred action is granted on a case-by-case basis. Even if you meet the requirements outlined below, DHS will still have to decide whether to grant you deferred action.

A grant of deferred action is temporary and does not provide a path to lawful permanent resident status or U.S. citizenship. However, a person granted deferred action is considered by the federal government to be lawfully present in the U.S. for as long as the grant of deferred action is in effect.

Who is eligible for an initial grant of DACA?

To be eligible for deferred action under the DACA program, you must:

  • Have been born on or after June 16, 1981.
  • Have come to the United States before your sixteenth birthday.
  • Have continuously lived in the U.S. since June 15, 2007.
  • Have been present in the U.S. on June 15, 2012, and on every day since August 15, 2012.
  • Not have a lawful immigration status. To meet this requirement (1) you must have entered the U.S. without papers before June 15, 2012, or, if you entered lawfully, your lawful immigration status must have expired before June 15, 2012; and (2) you must not have a lawful immigration status at the time of your application.
  • Be at least 15 years old. If you are currently in deportation proceedings, have a voluntary departure order, or have a deportation order, and are not in immigration detention, you may request deferred action even if you are not yet 15 years old.
  • Have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, be an honorably discharged veteran of the Coast Guard or U.S. armed forces, or “be in school” on the date that you submit your deferred action application. See below for more information about meeting the “be in school” requirement.
  • Have not been convicted of a felony offense. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
  • Have not been convicted of a significant misdemeanor offense or three or more misdemeanor offenses. See below for more information about offenses that may disqualify you.
  • Not pose a threat to national security or public safety. (DHS has not defined what these terms mean but has indicated that they include gang membership, participation in criminal activities, or participation in activities that threaten the U.S.)
  • Pass a background check.

How do I request DACA for the first time?

You can submit your request for DACA on the USCIS Form I-821D, Consideration of Deferred Action for Childhood Arrivals.[2] You must complete and submit the most recent version of the form. The most recent version of the form has the following printed in the bottom left corner of each page:

Form I-821D  06/04/14  N

If you do not use the most recent version of the form, your application may be sent back to you.

If you do not currently have DACA and are submitting an initial request, make sure you fill out all the items in the form that are labeled “For Initial Requests.”

Along with the I-821D form, you must complete and file Forms I-765 and I-765WS to request a work permit. Information about work permits is available on USCIS’s website at www.uscis.gov/i-765. You must show an economic need for employment in order to get the work permit.

More information and instructions about where to mail your application packet are available from www.uscis.gov/i-821d. If USCIS finds that your request is complete, you will be sent a receipt notice. USCIS will then send you an appointment notice to visit an Application Support Center (ASC) in order for you to be fingerprinted and photographed. Once a final decision has been made on your request, USCIS will send you a written notice of the decision.

Will USCIS conduct a background check as part of my DACA request?

Yes. These checks involve checking the biographic and biometric information that you provide against a variety of databases kept by the federal government.

What are the fees associated with the DACA application?

The application fee is $465, which consists of a $380 fee for the employment authorization application and an $85 fee for fingerprints. Fee waivers are not available. However, fee exemptions will be available in very limited circumstances.

How do I prove that I qualify for DACA?

To prove that you qualify for DACA, gather documents such as financial records (lease agreements, phone bills, credit card bills), medical records, school records (diplomas, GED certificates, report cards, school transcripts), employment records, and military records. 

In order to prove that you have lived in the U.S. continuously since June 15, 2007, you must provide documents that prove you were in the U.S. during that period. As a rule of thumb, consider submitting a document for each 12-month period since June 15, 2007. If you do not have documents to establish that you were in the U.S. for a significant part of the period between June 2007 and the present time (in other words, if there is a gap in your documentation), consider submitting affidavits from at least two individuals who have personal knowledge that you were in the U.S. during that gap.

If you have ever been arrested, you should request a copy of your criminal history from your state or from the Federal Bureau of Investigation (FBI). You should also request, from each court in which you had a criminal case, a letter describing what the judge ultimately decided in each case. This letter may be referred to as a “disposition letter” or “certificate of disposition.” If it’s possible that you have an outstanding warrant, we suggest that you do not go in person to request any of these records. If you know you have or even think you may have an outstanding warrant, you should consult with an attorney about what would be the best way to proceed.

What do I do after I gather all my materials and fill out all my forms?

Before you submit your application, make sure you make a copy of the complete application packet and keep it in a safe place. You will need this packet for reference when you apply to renew your grant of DACA in two years. Being able to refer to the copy of your original application packet will help ensure that the information you provide is consistent.

What if some of my documents are in Spanish or another language?

All documents that you submit to USCIS that are not in English have to be translated into English. You can do the translation yourself if you speak both English and the language the document is written in. At the end of each document you translate from another language in English, you must submit a dated and signed statement certifying that you are competent to translate from that language into English. Specific instructions for how to certify that you are competent to do the translation can be found on page 3 of the instructions for completing Form I-821D.[3] Note that the translations do not have to be notarized.

I have been paying taxes using an ITIN number. Do I list that on my application?

No. Only list a Social Security number that was properly issued to you by the Social Security Administration. Do not list an ITIN (Individual Taxpayer Identification Number)—or any other Social Security number that you may have used—on your DACA or employment authorization application forms. However, if you filed income tax returns using an ITIN, you may include copies of your filed income tax returns to show that you have been in the country during the years for which you filed the tax returns. If you submit copies of your income tax returns, you do not have to include with them your W-2 (Wage and Tax Statement) forms.

What qualifies as “currently in school?”

To meet the “currently in school” requirement, you must be enrolled in:

  1. a public, private, or charter elementary school, junior high or middle school, high school, secondary school, alternative program, or homeschool program that meets state requirements;
  2. an education, literacy, or career-training program (including vocational training) that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job training, or employment, and where you are working toward such placement; or
  3. an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other equivalent state-authorized exam.

What is considered a “significant misdemeanor”?

A misdemeanor is a crime for which the maximum term of imprisonment is one year or less but more than five days. A single “significant misdemeanor” will make you ineligible for deferred action. DHS considers the following to be “significant misdemeanors”:

  • An offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; driving under the influence (these offenses are considered “significant misdemeanors” regardless of the length of the sentence that is imposed).
  • For offenses not listed above, a “significant misdemeanor” is one for which you were sentenced to more than 90 days in custody. This does not include a suspended sentence.

What types of offenses count towards the “three or more misdemeanor offenses”?

  • Any misdemeanor (not meeting the definition of “significant misdemeanor”) for which you are sentenced to at least one day in custody counts toward the “three or more misdemeanor offenses.” 
  • DHS will not count minor traffic offenses as misdemeanors, unless they are drug- or alcohol-related.
  • DHS will not count immigration-related offenses created by state immigration laws as being misdemeanor offenses or felonies. For instance, Arizona, Alabama, and other states have passed laws that make it a crime for undocumented people to engage in many everyday actions; these crimes will not be counted as felonies or misdemeanors.
  • DHS will look at all the circumstances in a case to decide whether a person who has committed a criminal offense will be given deferred action. 

If I am granted deferred action, for how many years will I have it?

Deferred action under DACA is granted for a period of two years. You will also be able to apply to renew your DACA deferred action and work permit for an additional two years. More specific information about the DACA renewal process is available from the National Immigration Law Center’s FAQ: Deferred Action for Childhood Arrivals Renewal Process.[4]

I was granted deferred action and received my work permit, but then I lost it. Can I get a replacement card?

Yes, but you will have apply for a replacement card by completing and submitting Form I-765.[5] You will have to pay the work permit application fee and check the box, near the top of Form I-765, next to “Replacement (of lost employment authorization document).”

I received a letter saying that I was granted deferred action, but I never received a work permit. How can I get my work permit card?

If you received a letter saying that you’ve been granted DACA, but you didn’t receive a work permit, call USCIS at 1-800-375-5283 and tell the agent who answers that you were granted DACA but didn’t receive your employment authorization card. You will have to be ready to provide information about your case, including your application receipt number.

I got my work permit, but the information on the card is incorrect. Can I get a replacement card?

Yes, but you will have apply for a replacement card using Form I-765, unless you can prove that it is USCIS’s fault that the information is incorrect. You will have to call USCIS at 1-800-375-5283 and provide them the information they request.

If you can’t (or don’t want to try to) prove that the error is USCIS’s fault, you will have to resubmit Form I-765 along with the work permit application fee. On the form, you must check the box near the top to show that you’re applying for a “Replacement (of lost employment authorization document).”

May I travel outside the United States?

If you travel outside of the U.S. after August 15, 2012, and before your DACA is approved, you won’t be eligible for deferred action. However, if USCIS approves your request for deferred action, you may travel outside of the U.S. if you apply for and receive advance parole from USCIS. Advance parole allows you to leave the U.S. for humanitarian, employment, or educational reasons.

You can apply for advance parole on USCIS Form I-131 (www.uscis.gov/i-131). Check with an attorney before leaving the U.S., since receiving advance parole does not guarantee that you will be able to return to the U.S.

Note that you cannot apply for advance parole and DACA at the same time. You cannot apply for advance parole until after you have received DACA.

You can find additional information about advance parole in the webinar available at this URL: https://cliniclegal.org/resources/webinars/webinar-travel-abroad-deferred-action-childhood-arrivals-daca-recipients.  

Will I be able to get a driver’s license?

State driver’s license requirements for immigrants, and the documents accepted as proof of eligibility, vary by state. Since a grant of deferred action is listed in the federal Real ID Act as a basis of eligibility for a license that’s recognized for certain federal purposes, there are strong arguments for states to grant driver’s licenses to people granted deferred action. Currently, otherwise-eligible DACA grantees can get a driver’s license in every state except Arizona and Nebraska. Litigation challenging the denial of driver’s licenses to DACA grantees in those two states is ongoing.

NILC is keeping track of any new developments in state laws, policies, and practices that affect whether DACA recipients are able to get driver’s licenses.[6]

Will I be able to get a Social Security number?

Yes! Once your work permit arrives, look up your local Social Security office at www.ssa.gov. It is recommended that, when you go to Social Security to apply for your number, you also take your birth certificate and other identification documents to prove your identity.

Will I be able to get in-state tuition?

The rules on in-state tuition for immigrants vary by state and sometimes by college system. At least seventeen states and major universities in other states already allow certain students to pay in-state tuition, regardless of their immigration status.[7] You will need to check your state’s laws and policies to determine whether residents who have deferred action are eligible to pay in-state tuition. In some states, students must have resided in the state in a lawful status for at least a year in order to qualify for in-state tuition.

Although there are strong arguments for letting resident students with deferred action pay in-state tuition, it may take advocacy to ensure that your state recognizes deferred action as an eligible category and accepts your documents for in-state tuition purposes.

If I am currently detained by U.S. Immigration and Customs Enforcement (ICE), how do I get deferred action?

If you are in immigration detention and qualify for DACA, you should inform your deportation officer. You cannot file a DACA request while you are in ICE custody, but if ICE releases you, you can file a request for DACA with USCIS. If your deportation officer is unavailable, contact the ICE Community and Detainee Helpline at 1-888-351-4024 (staffed 8 a.m.- 8 p.m., Mon.- Fri.) or the Law Enforcement Support Center hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week), or send an email message to ERO.INFO@ice.dhs.gov.

More information about applying for DACA from detention can be found at www.ice.gov/daca.

I have a deportation case but I am not detained. How do I get deferred action?

People who are not detained can submit a deferred action request to USCIS even if they are currently in removal proceedings, have a final removal order, or have a voluntary departure order. A request should include evidence that you are eligible for deferred action under the criteria outlined above.

If I request DACA, will the information be kept confidential?

According to USCIS, information provided in a request for deferred action, including information about family members and guardians, will not be shared with ICE and U.S. Customs and Border Protection (CBP) for the purpose of deportation proceedings unless your case involves fraud, a criminal offense, a threat to public safety or national security, or other exceptional circumstances. However, the information in your request may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

If my DACA request is denied, will I be placed in deportation proceedings?

If you are denied DACA, USCIS will refer your case to ICE only if it involves a criminal offense, fraud, or a threat to national security or public safety. It is against USCIS policy to refer cases to ICE where there is no evidence of fraud, a criminal offense, or a threat to public safety or national security, unless there are exceptional circumstances. Before you request deferred action, however, it is really important that you first consult with a reputable attorney or legal services program if you have ever been arrested or convicted of any kind of crime.

How is DACA different from the DREAM Act that has been proposed in the past?

The DACA announcement came from DHS, which is one of the agencies within the federal government’s executive branch. DHS has the power to make certain decisions about the enforcement of immigration laws. The executive branch does not have the power to create a path to permanent lawful status and citizenship. Only Congress, through its legislative authority, can grant that.

The DREAM Act is legislation that must be passed by Congress to become law. Past DREAM Act proposals have included a path to citizenship. In contrast, a grant of deferred action is only temporary and does not provide a path to lawful permanent residency or citizenship.

Deferred action is only a temporary fix. We still need to fight for the DREAM Act to be enacted so undocumented youth can have a permanent solution.

Should I request deferred action?

Get informed first. Try to get as much information as you can and to attend a workshop or clinic. After consulting with a reputable attorney or legal services program, especially if you have ever been arrested or convicted of any kind of crime, you should make your own decision about whether you want to ask for deferred action.

Remember, USCIS will not tolerate fraud, so make sure your deferred action request is accurate and complete before you submit it.

Why should I apply for deferred action if I can just wait for Congress to pass an immigration reform law?

While Congress has been considering whether to reform the U.S.’s immigration system, there is no guarantee that it will pass an immigration reform bill. Even if a bill eventually does pass, it’s not clear now who would qualify to apply for legal status.

My deferred action application has been pending for too long. Should I be concerned?

USCIS has said it is taking, on average, 4 to 6 months to make a decision on each DACA application. Here are some ways to check what’s happening with your application:

  1. Use USCIS’s “My Case Status” webpage.[8] Go to the page, enter your application receipt number in the box, and click the “Check Status” button.
  2. Call USCIS at 1-800-375-5283. Be prepared to be on the phone for a few hours. Inform the agent who answers that you applied for DACA, then tell the agent why you are calling. He or she should be able to direct you to a USCIS representative who can update you on your case’s status.
  3. Consider contacting your local congressional representative and asking him or her to inquire about your case. If you don’t know who your representative is, you can use the U.S. House of Representatives’ online “Find Your Representative” tool.[9]
  4. As a last resort, you can submit a request for “case assistance” to the Citizenship and Immigration Services Ombudsman. But do this only after you’ve done everything you can to learn the status of your case using USCIS’s customer service options. Information about how to get help with a pending application, as well as how to submit a request to the Ombudsman’s office for help with your case, is available at www.dhs.gov/case-assistance.

I received a Request for Evidence (RFE) from USCIS. What should I do?

When USCIS wants you to submit additional evidence to support your DACA application, it will send you an RFE. Make sure you respond quickly to any RFE you receive, since you must provide the additional evidence within three months. If you do not respond before the deadline, your DACA application will be denied. The RFE will tell you exactly what additional evidence you need to submit. If you are not sure how to respond, consult with an attorney or accredited representative.

I received a Notice of Intent to Deny (NOID) or a denial. What are my options?

If USCIS sends you a NOID, it is informing you that USCIS doesn’t think you meet the requirements for DACA. If you don’t respond within 33 days, your DACA application will be denied.

If your application is denied, you will receive a denial letter. This denial cannot be appealed. If you think that you in fact do meet the requirements for being granted DACA and you want your case to be reconsidered, you will have to reapply and pay the application fees again. However, before you reapply for DACA after having received a denial, it would be best to consult with an attorney or accredited representative.

Where can I get more information?

Own the Dream is a national campaign to help aspiring Americans brought to the U.S. as children take advantage of the opportunity to request deferred action and work permits. NILC is proud to be a member of this important campaign, and we encourage you to visit www.weownthedream.org to determine your eligibility,[10] to find free or low-cost clinics and licensed reputable attorneys in your area,[11] to review information about deferred action,[12] and to connect with other immigrant youth. Own the DREAM has also established a toll-free hotline (1-855-DREAM-D-1) for information about deferred action, as well as a text messaging system (text “OwnIt” to 877877) by which you can receive the latest alerts and updates about DACA.

If you are in detention, you can visit ICE’s DACA webpage, www.ice.gov/daca/, or call ICE’s hotline at 1-888-351-4024 (8 a.m. - 8 p.m., Mon.-Fri., English & Spanish). Everyone else can visit USCIS’s DACA webpage, www.uscis.gov/childhoodarrivals, or call the USCIS hotline at 1-800-375-5283 (8 a.m. - 8 p.m. Eastern time, English & Spanish).

How can I get involved with the immigrant youth movement?

Join the Own the Dream campaign and visit www.weownthedream.org to find an immigrant youth group in your area. We encourage you to get involved and join the movement for social justice!


This document is a work in progress and will be updated as DHS releases more details about the deferred action process. Check www.nilc.org/FAQdeferredactionyouth.html for updates.

NOTE: This FAQ contains general information and is not legal advice. Every case is different.

Do NOT take advice from a notary public or an immigration consultant. Contact ONLY a qualified immigration lawyer or an accredited representative for legal advice on your case.

 


NOTES

[1] www.nilc.org/dacarenewalprocess.html.

[2] See www.uscis.gov/i-821d. The form itself can be downloaded as a PDF from www.uscis.gov/sites/default/files/files/form/i-821d.pdf.

[3] www.uscis.gov/sites/default/files/files/form/i-821dinstr.pdf.

[4] www.nilc.org/dacarenewalprocess.html.

[5] www.uscis.gov/sites/default/files/files/form/i-765.pdf.

[6] www.nilc.org/dacadriverslicenses.html.

[7] See www.nilc.org/basic-facts-instate.html.

[8] https://egov.uscis.gov/cris/Dashboard/CaseStatus.do.

[9] www.house.gov/representatives/find/.

[10] www.weownthedream.org/deferred-action/.

[11] www.weownthedream.org/legalhelp/.

[12] www.weownthedream.org/faq/.