Deferred Action for Childhood Arrivals (“DACA”) -- A new opportunity?
By now many applications have been filed for deferred action for individuals who demonstrate they meet the following factors and who will be eligible for an exercise of discretion and will be granted deferred action on a case by case basis:
1. Came to the United States under the age of sixteen;
2. Have continuously resided in the United States for at least five years preceding the June 15, 2012 announcement by the Department of Homeland Security and are present in the United States on June 15, 2012;
3. Are currently in school, have graduated from high school, have obtained a general education development certificate (G.E.D.), or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
5. Are not above the age of thirty.
Applicants for relief will have to show through verifiable documentation that they meet these criteria. Deferred action requests are decided on a case-by-case basis. This program has been in effect since November, 2012. Our office has filed numerous DACA cases and to this date all applicants have been successful. A DACA approval provides employment authorization for a period of two years which can be renewed for an additional two years.
The recently proposed Border Security, Economic Opportunity and Immigration Modernization Act (S.744) provides for registered provisional immigration status. Basically it allows certain non-citizens who are currently unlawfully present and entered the United States before December 31, 2011 to change their status to a registered provisional immigrant (“RPI”). Ultimately those persons who are granted RPI status will be allowed to adjust to the status of a lawful permanent resident (“LPR”). While in RPI status these persons may legally work in the United States and legally travel outside the United States.
The interesting thing is, however, that Section 245B(c)(13) of the proposed law provides an additional opportunity for DACA recipients. That Section authorizes the Department of Homeland Secretary to grant RPI status to previously approved DACA beneficiaries provided they undergo renewed national security and law enforcement clearances and have not engaged in conduct that would render the individual ineligible for RPI status since the DACA status was granted. This is huge. This means that those persons who were granted DACA status will have an almost immediate access to RPI status. Further, Section 245D(b)(2)(C) authorizes the Secretary of Department of Homeland Security to adopt streamlined adjustment of status procedures for DACA recipients to become permanent residents (green card holders). So, not only do the DACA’s get an expedited RPI status, but they also may be eligible for the streamlined adjustment of status to LPR.
There are many childhood arrivals who could qualify for DACA status now with all its present benefits. Additionally there may be new opportunities if the Border Security, Economic Opportunity and Immigration Modernization Act becomes law.
For more information, please contact Attorney Jason Y Gans.