Deferred Action for Childhood Arrivals (DACA)

Very Important Note! The Deferred Action for Childhood Arrivals (DACA) program is currently under federal litigation. This program and the status it confers can change at any time as the litigation progresses, and even due to decisions made by the agency and presidential administration. This information is only meant as a general overview.

Avoid scams!  Do NOT go to a notario or file on your own (please). Work only with a licensed attorney.

DACA Basics- Deferred Action for Childhood Arrivals

Deferred Action for Childhood Arrivals – DACA – was implemented in 2012 by the Department of Homeland Security. It allowed certain people who came to the United States as children – and met many other requirements – to be granted “deferred action” and apply for work authorization.

DACA is a kind of Deferred Action, which is a decision by the US government not to deport someone who may otherwise be deportable. By itself, it does not give someone lawful immigration status or waive (pardon) any previous immigration or criminal offenses. It is simply a temporary and discretionary lawful presence that comes along with work authorization (usually a 2-year Employment Authorization Document).

Even though DACA does not give permanent status on its own, it does have some advantages. People with DACA are considered “lawfully present” for some purposes and may be eligible for some benefits, such as work authorization and some Social Security benefits. (Please note that “lawfully present” is different than “lawful status.”) The grant of deferred action is for two years at a time and can be renewed if the person is still eligible.

Some DACA holders may also be able to travel outside the United States for limited purposes (humanitarian, educational, or employment) through Advanced Parole process. DACA holders should not travel outside the United States without consulting with an attorney because in some cases it helps a person move towards residency and in others it might prevent it!

The Goal – Find Other Options for Dreamers

So, what is the plan? Even in the beginning of the DACA program, immigration attorneys and advocates preferred to find alternate, more permanent options for anyone who was eligible for DACA. This is even more important now that the future of the DACA program is so uncertain. 

Even if you have been granted DACA in the past, it may be worth having a full consultation with a qualified immigration attorney to learn about any other immigration options you may have. 

See: How to set up a Consult and other FAQs

Review the list below, but please also review the “Do you need a waiver of inadmissibility?” section, as some of these options may not be available to you based on your immigration and criminal offense history.

How else could a DACA recipient stay in the United States? There are several possibilities, but not all of them are available for every person. A detailed immigration consult is necessary to help decide which of these may be available to you:

• A family petition:

• • Based on marriage to a US Citizen or Lawful Permanent Resident (green card holder) – but not always. Your entry/exit history, your use of false papers or a US citizen identity, or other things might prevent a family based sponsorship from being a successful green card case.
  • Based on another family member who has US Citizenship or Lawful Permanent Residency. Long wait times or specific ineligilibity due to past immigration violations may prevent this.
  • Options for military families – “Parole in Place.” Again, comprehensive consults are designed to determine if something like this would work. If you have been denied PIP, a second opinion can help.

• Humanitarian immigration options

• • A U Nonimmigrant Visa for victims of certain qualifying crimes (even if you have not reporeted the crime, we want to know if you have been a victim). LINK TO OUR PAGE
  • A T Nonimmigrant Visa for victims of sex or labor exploitation (this is a very broad category, so when you see the word “trafficking” please keep reading – many people who have been victimized, even if it went unreported, are T visa eligible  LINK TO OUR PAGE
  • A self-petition under the Violence Against Women Act (VAWA) may present some options for people who have been victims of abuse by a US Citizen or Lawful Permanent Resident spouse, parent, or child. 
  • See Also: Options for victims of Domestic Violence, LGBTQIA+ T Visas.

• Medical Deferred Action for parents of sick children

• • Although this would not be a permanent immigration option, your attorneys will also want to know if you are the parent or caretaker for a child with critical illnesses or special needs. You may be eligible for General (Medical) Deferred Action. LINK TO OUR PAGE

• Other special remedies that are best explained in a consultation:

• • Special Immigrant Juvenile Status (SIJS) may be available for a child under age 18 (or 21 in some places) who has been abused, abandoned, or neglected by at least one parent. The juvenile court or another state agency must be involved in the child’s custody in some specific ways; a full consultation will be important to learn if you are eligible. 
  • Asylum – though our law office does not usually take asylum cases, we could help you understand your options through a full consultation and, if there is no other option that we could help you with, refer you to another attorney who does take asylum cases.  
  • Relief from removal – if you are in removal proceedings, there are some limited “cancellation of removal” remedies that may be available to you.  

There are so many other types of immigration remedies beyond just what is listed here. You can book a consultation to explore all your options.

Records Requests: Know Your History!

We are aware that since many Dreamers were brought to the United States as a minor, they may not even know their full immigration history. 

Part of our research into your current status usually includes filing requests with the various government agencies who manage people moving in and out of the United States, including the United States Citizenship and Immigration Service (USCIS), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), and the Executive Office for Immigration Review (EOIR).  Under the “Freedom of Information Act,” you have a right to your files!

We can file these records requests for you after our consultation and contract process. See: How to set up a Consult and other FAQ

Important! Do you need a Waiver of Inadmissibility?

Certain elements of your immigration status, as well as any criminal offenses, can make you “inadmissible” to the United States. You can think of it as certain actions (such as entering without authorization, leaving, and then re-entering the United States) that “close the door” on some immigration options for you. This means that even though you may qualify for the basic elements of a family or humanitarian immigration remedy, it would not be granted to you because of your inadmissibility factors. 

Some people with DACA have inadmissibility issues that can be waived/forgiven as part of a new type of immigration application. Sometimes it cannot. Also, just because you have DACA does not mean another type of case will or will not work for you, because “inadmissibility” rules are not the same for each type of immigration option. Some people who are “inadmissible” still get DACA renewals because they meet the DACA requirements, but when we look at another type of immigration option for them, we would have to file for waivers or other types of applications would need to be submitted.

Honesty is important! An inadmissibility screening will be part of the conversations you have with our legal team before you meet with the attorney. It is important that you answer the questions honestly and to the best of your ability. Your attorney can only help you solve the problems if you disclose them to us in this confidential and safe space. Most T and U visas and VAWA and SIJ cases have special waivers or provisions making it easier to get an inadmissibility waiver or exemption. 

The detailed inadmissibility screening will allow our attorney to decide if you have any problematic inadmissibility factors AND if you are eligible to apply for a waiver of inadmissibility before, or along with, another immigration option.

Derivatives – Benefits For Family Members

While DACA is for the person who qualifies for DACA, sometimes a DACA holder has a family with mixed status, meaning their parents, siblings, spouse or children need status. Those people don’t get DACA just because the main applicant has DACA, since DACA does not allow for “derivative beneficiaries.” 

However, we take a holistic view in consultations. We are looking not just for something BETTER than DACA – we are looking to see whether we might have options to offer a family of derivatives. If we find a potential derivative option, we will let you know if the family member should book a consultation with our office. Also, sometimes it turns out that the DACA holder is not eligible for any new, cool immigration option – but their spouse or other family member is – and then we end up doing a case for both people so that everyone can benefit. 

Here is an example: Bob has DACA. Bob’s mother and father are undocumented. Bob’s employer was being horrible on a day when Bob called in sick. Bob’s supervisor, who he usually carpooled with, went to the home where all three lived and yelled at Bob to get out of bed and get to work or there’d be heck to pay if he had to send immigration to the house to get Bob out of bed. Now Bob and his parents are worried about how the employer knows where they all live. In a case like this, our office would be looking at doing a T-1 visa for Bob and T-4 visas for his parents, and then filing for green cards.

Let’s switch the scenario. Let’s say it was Bob’s mother who got yelled at by her boss which scared her husband and son – we might be filing a T-1 for Bob’s mom, a T-2 for his dad, and a T-3 or T-6 for Bob, depending on Bob’s age. See why we need the bigger picture?

So, if you have DACA but your mother or spouse is living in the shadows, don’t forget that they probably need consultations too (assuming you have a family member who is loving, supportive, and not in conflict with you, we would want to help them too). Separate consults are needed for family members.

This article was not just about DACA for a reason – We wish to help people get inspired to seek new options and to explore all the details needed to have a better, brighter immigration future in this country.