Deferred Action DACA 1.0
Original DACA program

Using executive powers to stop removal (deportation) of young persons illegally present in the U.S., but who assimilated through education or military service, on June 15, 2012, then Homeland Secretary Janet Napolitano issued a memorandum providing for Deferred Action for Childhood Arrivals (DACA) who were in removal, subject to removal, or identified as undocumented, provided they met the following criteria:

  1. came to the United States before the age of sixteen (15 and below);
  2. except for brief departures for humanitarian reasons, had continuously resided in the United States for a least five years preceding June 15, 2012 and were physically present in the United States June 15, 2012;
  3. were currently in school (including qualified programs for GED), graduated from high school or obtained a GED, or were honorably discharged from the Coast Guard or U.S. Armed Forces;
  4. were not convicted of a felony, a significant misdemeanor (including DUI), multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
  5. were not over the age of thirty-one on June 15, 2012.
  6. Were out of status on June 15, 2012, either by virtue of overstaying a visa, illegal entry, or termination of status by operation of law.

This is the original DACA program, which remains in effect notwithstanding an injunction against executive actions to expand the program announced in November 2014 by President Obama. Read more about executive actions and the injunction against them. To see if you qualify for the original DACA program, try our free online bilingual computer program.

Eligible individuals, regardless of being under the age of 15, who were already in removal proceedings that had not culminated in a final order of removal (deportation) were to be given deferred action for a period of two years, which was renewable indefinitely. The ICE Office of Public Advocate was the entity to whom persons who believed they could qualify to direct inquiries.

Qualified persons whose cases resulted in final orders of removal (deportation) of any age or who were never placed in removal and were at least 15 years old could apply to USCIS for a two year deferred action determination, subject to renewal.

USCIS began accepting applications on August 15, 2012. Three official forms had to be submitted, one for deferred action (form I-821d), another for work authorization (form I-765), and a third worksheet to establish economic need for employment (form I-765ws). Documents to establish physical presence, schooling or military record, identity, and age were required to be submitted. Applications had to be accompanied by the required $465 fee, which was non-refundable. No fee waiver was possible but in some rare cases, fee exemption could be granted. A criminal record would disqualify persons under certain circumstances. No appeal was possible. A motion to reopen could be filed in egregiously wrongly decided cases, but refilings were discouraged.

If an application is successful, advance parole to travel outside the country iss available, at the discretion of the immigration officials. A form I-131 was used to request it, but it can not be submitted before the I-821d is approved.

One potentially troublesome area in administering the policy involves prior trouble with the law. Traditional immigration rules applicable to other criminal cases did not necessary apply to determinations made for deferred action. Thus, a single prior DUI conviction, which ordinarily had little relevance in other immigration proceedings, could disqualify an applicant who was otherwise eligible under DACA. Prior juvenile delinquency dispositions generally were not taken into account. The same is true of expunged crimes. On the other hand, a misdemeanor conviction for illegal possession of marijuana did not necessarily preclude DACA.

No amnesty, path to permanent residency, citizenship, or other immigration benefit is officially authorized, but one did emerge based on the case of Arrabally and Yerrabelly. No benefit is conferred on family members by virtue of DACA, but this may no longer apply under OBAMADARE if that program is allowed to go forward, notwithstanding unfavorable judicial action.Read more about deferred actions.

Arizona refused at first to issue driver's licenses to persons granted DACA benefits on the theory that the DACA documents do not confer lawful presence upon them, but in ARIZONA DREAM ACT COALITION V. JANICE BREWER , 13-16248 (2014), the U.S. Court of Appeals for the Ninth Circuit ruled this policy unconstitutional as a violation of equal protection of the laws, a decision the Supreme Court refused to enjoin.

Young people who were ever the subject of a police investigation, used a false social security card, falsely claimed to be a citizen, or left the country during the five year qualifying period are strongly advised to consult with a qualified immigration lawyer before filing papers for DACA, as the process may not have been appropriate for them. Although USCIS stated it would not consider prior use of false social security cards in the DACA process, some successful DACA applicants reported inquiries from social security about the use of false numbers previously when they applied for social security cards after employment authorization issued.

Being enrolled in certain GED programs will qualify as being currently enrolled in school and thus can support an application for DACA benefits but in Arizona, one must have a state issued ID to enroll for a GED under state programs, which is unavailable generally to undocumented persons, so consultation with knowledgeable individuals is recommended.

Although DACA is a program that is not supposed to lead to permanent residency and citizenship, in practice, it can. By departing the US under advance parole and re-entering with it, it is possible to apply for permanent residency if the requisite familial or other traditional legal basis exists. This is a complicated procedure that should only be undertaken with the help of a qualified immigration attorney. If you want experienced legal advice about it, contact Messing Law Offices (520) 512-5432 for professional Arizona immigration attorney assistance. Please call (520) 512-5400 for further information about DACA.