DACA-To File or Not to File
Oct. 19, 2012
On August 15, 2012, USCIS started implementing the new executive order of President Obama as directed to his Secretary of Homeland Security, Janet Napolitano. DACA-Deferred Action for Childhood Arrivals, which is a deferment or postponement of an act, i.e. removing/deporting an alien from the U.S. despite having legal and factual grounds to do so, e.g. an individual being in the US without having legal immigration status. Essentially its akin to probation in a criminal case, where the judge has found a defendant guilty of a crime but places them on probation for a certain period of time and if all requirements are met, the case will be dismissed.
An alien applicant may request consideration of deferred action for childhood arrivals if:
Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
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;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, 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, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Anyone requesting consideration for deferred action under this process must have been under 31 years old as of June 15, 2012. You must also be at least 15 years or older to request deferred action, unless you are currently in removal proceedings or have a final removal or voluntary departure order
Requestors – those in removal proceedings, those with final orders, and those who have never been in removal proceedings – will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS.
Requestors will use a form developed for this specific purpose.
Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox.
All requestors must provide biometrics and undergo background checks.
Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances.
The four USCIS Service Centers will review requests.
Since August 15, 2012, only 181,000 applications have affirmatively been filed although the consensus is that approximately 1.26 million prospective applicants are eligible throughout the US, and approximately 4,500 applications have been approved.
So why have less then 20% of eligible applicants applied for this benefit? On the one hand it may be an issue of fees, having to pay the $465 non-waivable fee (only under extremely limited circumstances are fee waivers granted), but this does not appear to be the underlying reason for this lackluster application process.
No, the main reason is that eligible applicants are weary, and rightfully so, and are allowing the first badge of applicants to act as guinea pigs or test cases to await the outcome of the first badge of applicants. Now that in a relatively short period of time, several thousand approvals have started to stream in, perhaps more youngster will come out of the shadows to apply. Another more concerning reason though is the uncertainty caused by all the political rhetoric of the presidential election, in which Presidential candidate Mitt Romney has in no unclear terms opined that he will rescind President Obama’s Executive Order and discontinue the prosecutorial discretion of DACA. He did promise to allow the approved 2 year DACA recipients to keep their status until expiration.
But then what? Now, USCIS will have a list of aliens whose previous whereabouts were unknown and which may now readily be shared with ICE, the law enforcement arm of US Immigration, and would certainly greatly simplify the rounding up for placement into deportation proceedings, the existing database of existing DACA applicants now already in the “system.”
The issue then arises, are prospective applicants holding back their enthusiasm and not filing DACA applications to await the outcome of the November 6, 2012 Presidential election? If Obama gets re-elected, then file? Conversely if Romney beats Obama then remain in the shadows? There appears to be a multitude of reasons of why the bulk of the majority of the pool of eligible applicants have opted not to apply and hold of on their applications, and this can be seen as placing a damper on the much touted and publicized watered down version of the DREAM ACT, DACA which has also been used as a political football by the Republicans in Congress for the last 12 years and has failed to pass on a partisan basis.
It behooves whoever the winner in the up coming presidential election is to fully adopt a more comprehensive fix such as a broader comprehensive immigration bill to be presented to Congress as a template, originating from the Whitehouse as a starting template for further deliberations by our legislators in Congress for a joint partisan immigration bill to be signed by the new president which will address the concerns of our undocumented alien youngsters who if given a true path to permanent residency and eventual potential citizenship will only provide further impetus to our lethargic economy.