DACA & 601A

Deferred Action for Childhood Arrivals (DACA) is an American immigration policy that allows certain illegal immigrants who entered the United States before their 16th birthday and before June 2007 to receive a renewable two-year work permit and exemption from deportation.

Over the past several years, DACA has been working to transform the immigration enforcement system into one that focuses on national security, public safety, border security and the integrity of the immigration system. The Department of Homeland Security (DHS) continues to focus its resources on the removal of individuals who pose a danger to national security and public safety, and 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 DACA for a period of two years, subject to renewal for a period of two years, and may be eligible for employment authorization.

You may request consideration of DACA if you:

  1. Were under the age of 31 as of June 15, 2012
  2. Came to the United States before reaching your 16th birthday
  3. Have continuously resided in the United States since June 15, 2007 up to the present time
  4. 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
  5. 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 expired as of June 15, 2012.
  6. 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
  7. Have not been convicted of felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Expand Deferred Action for Childhood Arrivals (DACA) Program

Note that the DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.

Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents

DHS will extend eligibility for deferred action to individuals who:

  1. Are not removal priorities under our new policy
  2. Have been in the United States for at least 5 years
  3. Have children who on the date of this announcement are U.S. citizens or lawful permanent residents
  4. Present no other factors that would make a grant of deferred action inappropriate

These individuals will be assessed for eligibility for deferred action on a case-by-case basis, then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. Work authorization will allow these individuals to pay taxes and contribute to the economy.

Provisional Unlawful Presence Waivers

Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States. Under the existing waiver process, which remains in effect, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

The provisional waiver program DHS announced in January 2013 that undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, we will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

Revise Parole Rules

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action - they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.