“Deferred Action of Child Arrivals”, or the “DACA” immigration program, announced by the Obama administration on June 15, 2012, went into effect on August 15th when USCIS, the benefits arm of the Department of Homeland Security in charge of the program began accepting DACA applications on August 15, 2012. Many questions about this program, however, still remain.
“Deferred Action”, or “DACA”, is a two-year deportation deferral and work permit program, which enables an illegal alien to work legally for the first time. But applicants worry that their past actions could lead to their request being denied and expose them to deportation.
Large numbers of students from Mexico and worldwide who came to the U.S. illegally when they were young children, appear to qualify for DACA. But many are still cautious about applying. Some of the key concerns raised by prospective DACA applicants include having used a fake social security number or having re-entered after deportation.
USCIS, which will process all requests for deferred action, hasn’t clarified yet what will happen in cases where young applicants have certain issues related to having used fake social security numbers, reentry after deportation or failure to depart after having been granted voluntary departure as opposed to deportation.
These “red flag” issues are not easy to overcome. Neither attorneys nor their clients will have any ready-made answers without an official USCIS guidance to that effect. It thus seems more prudent at this time to wait rather than rush with applications containing those red flag issues. It makes sense to pause a bit before sending such applications for deferred action, rather than “rushing in,” only to have the case denied or forever stuck in USCIS bureaucratic quagmire. Once we see that similar cases are adjudicated and granted by USCIS it would then make more sense to apply.
According to official USCIS guidelines, however, neither using a fake social security number or ID, nor having repeated immigration violations should disqualify applicants from obtaining DACA status. Many undocumented youth satisfy the criteria – if younger than 31, came into the country before age 16, has lived in the U.S. for more than 5 years, has a high school diploma or GED and no criminal record. USCIS specified that only those convicted of either a felony, significant misdemeanor, or 3 or more non-significant misdemeanors are not eligible for DACA.
However, the interpretation of what constitutes a “significant misdemeanor” is discretionary and subject to interpretation by USCIS. This creates an additional risk for an applicant to have his/her case denied.
Currently some 200,000 undocumented immigrants in California alone are eligible to apply for deferred action. An additional 60,000 will be able to do the same when they turn 15, the minimum age required for applying, unless in immigration court proceedings, which then lowers the age to under 14.
Difficulties often arise when filling out DACA applications, when young undocumented immigrants are asked to include all social security numbers they’ve ever used. It is unclear at this point whether omitting a fake social security number that was used before will constitute fraud.
USCIS repeatedly said that those who commit fraud in their applications, alongside with applicants having criminal convictions or present a national security or public safety threat could end up in deportation proceedings. Understandably, this might lead many to being cautious. Clearly, no one wants to, nor should he/she be advised by attorneys to be the “guinea pig”.
Thus, despite good prospects for gaining temporary legal status and the ability to legally work in the U.S., many troubling questions still remain. There is a cost to the “Dream”. DACA applicants should therefore take a long and hard look at their options with the help of their immigration attorney and review all of the unintended consequences of a DACA application, before just rushing in to it.
