Filing for Deferred Action of Childhood Arrivals

Jose Machado, left, holds a sign in Spanish that reads "No Dreamer left Behind" during a news conference of students seeking
Jose Machado, left, holds a sign in Spanish that reads "No Dreamer left Behind" during a news conference of students seeking temporary relief from deportation in Miami, Tuesday, Aug. 15, 2012. Hundreds of thousands of young illegal immigrants scrambled to get papers in order Wednesday as the U.S. started accepting applications to allow them to avoid deportation and get a work permit but not a path to citizenship. (AP Photo/Alan Diaz)

Yesterday was the first day the U.S. Citizenship and Immigration Services (USCIS) began accepting applications for Deferred Action for Childhood Arrivals (DACA). On Tuesday, Alejandro Mayorkas, USCIS Director held another news briefing about the process offered to DREAMERS. In his opening paragraph, Mr. Mayorkas stated:

"Deferred Action does not confer lawful status."

This is repeated in the Frequently Asked Questions (FAQ) released by the USCIS yesterday:
The statement also appears on p. 2 of the 9 pages of instructions for completing the application (form I-821 D) which is now available online.

Today's DACA information from the USCIS also indicated that employment authorization must be filed on form I-765WS., a newly created form. The WS refers to a work sheet that must be completed to explain the "economic necessity" for granting the right to work. The annual Federal Poverty Guideline will be followed in making a determination on this request.

In view of the above, what is the benefit of DACA and why should anyone apply for it? It is an opportunity to request (1) employment authorization, (2) apply for a Social Security number, (3) work and hopefully set aside funds for school or other purpose, (4) eliminates the fear of coming out of the shadows, (5) provides the possibility of permission to travel, and (6) provides peace of mind for two years. The hope and/or gamble is that DACA will be either extended or converted to a process of legalization. However, both President Obama when he made the announcement on June 15, 2012 and all subsequent USCIS communications on the subject have unequivocally stated that DACA is not a path to legalization.

While the media is treating DACA as benefiting the Latino population, the temporary benefit applies to children of all nationalities, whether they entered the U.S. without permission from the Customs and Border Protection (CBP) or with a passport and U.S. visa. The visa period of permission to remain in the U.S., however, must have expired before June 15 and the applicant must have been present in the U.S. on June 15.

There is no time limit for the application process, but the applicant must be at least 15 yrs old and under 31 on June 15, 2012. This means that a 13 or 14 year old may wait and file when (s)he has attained the required age. There are many other requirements, such as arrival before age 16, physical presence in the U.S. on June 15, and residence in the U.S. for 5 years prior to June 15. The other points that must be satisfied refer to educational documentation, absence of criminal record, and lack of indications of threats to public safety and national security.

Again, Director Mayorkas used yesterday's conference to warn the public of fraud and scams perpetrated by notaries and immigration consultants. As early as June, stories already broke about con artists charging $6,000 in order to put the applicant "first in line." Each applicant should be weary of promises of "special contacts" with immigration officials who will extend "favors" or "protection." Immigrations scams have been a serious problem for many years. Its victims are often uniformed or ill informed about the process and how it works. Moreover, both in Latin countries and Europe, a notary is a lawyer, elevated to high status through special credentials. This gives them a false aura of expertise. In the U.S., of course, notaries require no special education and their function is limited to confirming identity, witnessing signatures, and administering oaths.

DACA benefits are available to qualifying applicants who have the patience and ability to read and follow 9 pages of instructions, warnings about absence of legal status, requirement of multiple types of documentation, understanding the federal poverty guideline, all leading to a decision and benefit that is discretionary. This means that it must be persuasive, if not compelling in its presentation. This is not a fill-in-the blanks and mail it situation. It requires an understanding of the entire scheme and purpose of a temporary policy. It should not be left to the inexperienced, a notary or a consultant.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.