DACA Deferred Action: Deportation Relief for Immigrant Students or Graduates

Young "illegal" immigrants educated in U.S. schools may receive relief from removal (deportation) for two years. Here's how the "DREAM Act" works.

On August 15, 2012, U.S. Citizenship and Immigration Services (USCIS) began accepting applications for "deferred action for childhood arrivals" (or DACA) from immigrants who were brought to the United States as children and meet certain other requirements. Such people are sometimes referred to as “DREAMers,” because proposed legislation known as the DREAM Act will, if eventually passed, accomplish something similar.

However, Congress has not yet passed the DREAM Act legislation, and no one can say if or when it will do so. As a stopgap, the Obama administration ordered the current DACA initiative in June of 2012.

Deferred action status is not an amnesty or a green card, nor (as of current law) even a step toward a green card or U.S. citizenship. It is a temporary status that amounts to a promise by the immigration authorities not to deport the person for the two years after his or her application for deferred action status is approved. In this instance, deferred action also comes with the right to a work permit (employment authorization document or EAD). It does not come with any derivative rights for family members of the applicant.

As with any new government policy, many questions remain. For instance, what happens if the policy later gets changed? Will applicants who apply for and are denied deferred action be deported? As of 2014, it appears that USCIS is following through on its assurances that it will not share information from the applications with Immigration and Customs Enforcement (ICE).  

Who Is Eligible for DREAM-Act Deferred Action?

According to U.S. Citizenship and Immigration Services (USCIS), you may request consideration for deferred action status if you:

  • were under age 31 as of June 15, 2012
  • arrived in the U.S. before the age of 16
  • have continuously lived ("resided") in the U.S. since June 15, 2007 up to the time of your application (not counting any brief, casual, and innocent departures)
  • were physically present in the U.S. on June 15, 2012, and also at the time of requesting deferred action
  • either entered the U.S. without inspection before June 15, 2012, or your lawful immigration status (such as a visa or Temporary Protected Status (TPS)) had expired as of June 15, 2012
  • are currently either in school (unless absent for emergency reasons), have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, and
  • have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors; and do not otherwise pose a threat to U.S. national security or public safety (for example, through gang membership).

What Is a "Significant Misdemeanor?"

The term "significant misdemeanor" is new to immigration law. It may therefore be difficult to evaluate, even for attorneys acting on a client’s behalf.

USCIS says that it includes any misdemeanor, regardless of the sentence imposed, that involved burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence of drugs or alcohol (DUI or DWI); and drug distribution or trafficking. A "significant misdemeanor" may also include any other misdemeanor for which the applicant was sentenced to more than 90 days in prison, not including suspended sentences, pretrial detention, or time held on an immigration detainer.

By contrast, a "non-significant misdemeanor" includes any misdemeanor punishable by imprisonment of more than five days and less than a year that is not on the USCIS list of significant misdemeanors (above).

How to Apply for DACA Deferred Action

You will need to submit a formal application, plus supporting evidence that you qualify for deferred action, plus fees. You can submit an application even if you are already in deportation proceedings, but the procedures will be somewhat different -- an attorney can help you with this.

The form for this application is called an I-821D, and is available for free download from USCIS, with instructions. You must also submit Form I-765 for the work permit, along with a worksheet called Form I-765WS. See the Consideration of Deferred Action for Childhood Arrivals page of its website for more information on submitting the application and follow-up.

For supporting documents, you will need to show evidence of your identity, age, arrival date in the U.S., school record, and evidence of continuous physical presence. Such evidence might, depending on your life circumstances, include:

  • birth certificate
  • copy of passport and, if any, visa and I-94 Arrival/Departure Record
  • plane, bus, or boat tickets showing entry to the U.S.
  • school records, including diplomas and GED certificates
  • copy of driver’s license
  • personal affidavits or statements by friends, teachers, employers, and ministers or other religious leaders
  • tax records
  • financial records
  • medical records
  • employment records, and
  • military records.

The fee is $465, which reflects the usual $85 biometrics (fingerprinting) fee for a background check, and $380 fee for the EAD. You must submit the EAD application (Form I-765) even if you do not want or need a work permit. In limited circumstances, USCIS may grant a fee waiver (exemptions) for low-income applicants.

Application Deadline and Renewals

There is no deadline to apply for this program, so long as you meet the eligibility criteria and the program is still in effect. In fact, the program has now been around long enough that renewals are possible (for another two years). See Nolo's article, "How to Renew Your DACA Status."  

Check With An Immigration Attorney

If you or anyone you know is considering applying for deferred action status, your best bet is to consult with a qualified immigration attorney – even if you later decide not to hire the attorney to prepare your application.

It is doubly important to consult with an attorney if you have any sort of criminal history, even if it was a juvenile conviction or the record has been sealed or expunged. USCIS interprets and treats criminal convictions in its own way.

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