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A. What is Deferred Action for Childhood Arrivals (“DACA”)?

Over the past several years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on national security, public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals (DACA) for a period of three years, subject to renewal for a period of three years, and may be eligible for employment authorization. Your request for DACA will be considered on a case-by-case basis and may be granted or denied at the agency’s discretion.

DACA was initially announced on June 15, 2012 via a memorandum from then-Secretary of Homeland Security Janet Napolitano.  On November 20, 2014, current-Secretary of Homeland Security Jeh Johnson issued a memorandum expanding guidelines for DACA in several key ways. Note, however, that the expanded DACA guidelines do not become effective until February 18, 2015.

Until the new guidelines go into effect on February 18, 2015, individuals may request DACA under the existing guidelines under the June 15, 2012 Napolitano memorandum.

Guidance on the expanded DACA guidelines under the November 20, 2014 memorandum is outlined below.

Beginning on February 18, 2015, you may request consideration for deferred action under DACA if you:

  1. Came to the United States before reaching your 16th birthday;
  2. Have continuously resided in the United States since January 1, 2010, up to the present time;
  3. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  4. Had no lawful status on June 15, 2012, meaning that:
  • You never had a lawful immigration status on or before June 15, 2012, or
  • Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012.
  1. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  2. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion.

Q2: What is DACA?
A2: On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum that provided that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action, subject to renewal, and would then be eligible for work authorization.  On November 20, 2014, Secretary of Homeland Security Jeh Johnson supplemented and expanded that guidance. This supplemented and expanded guidance on DACA becomes effective on February 18, 2015.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for a discretionary grant of deferred action. Determinations will be made on a case-by-case basis under the DACA guidelines.

Q3: Is there any difference between “deferred action” and DACA under this process?
A3: DACA is one form of deferred action. The relief an individual receives under DACA is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.

Q4: If my removal is deferred under the consideration of DACA, am I eligible for employment authorization?
A4: Yes. Under existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Q5: If my case is deferred, am I in lawful status for the period of deferral?
A5: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time. Individuals granted deferred action are not precluded by federal law from establishing domicile in the U.S.

Apart from the immigration laws, “lawful presence,” “lawful status,” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.

Q6: Can I renew my initial period of deferred action and employment authorization under DACA?
A6: Yes. You may request consideration for a renewal of your DACA. Your request for a renewal will be considered on a case-by-case basis. If USCIS renews its exercise of discretion under DACA for your case, you will receive deferred action for three years, and if you demonstrate an economic necessity for employment, you may receive employment authorization throughout that period.

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