Following federal court orders in 2018, DACA renewal remains available, but foreign nationals cannot file first-time DACA applications. This situation is subject to change.
The Deferred Action for Childhood Arrivals program (DACA) was created in 2012 by the administration of President Barack Obama. After President Donald Trump took office in 2016, its survival became threatened. In 2018, the Department of Homeland Security announced that the program would be phased out, but several federal courts ruled that it must continue. Thus, the program faces an uncertain future. DACA gives foreign nationals who came to the U.S. as children the right to seek a two-year period of protection from deportation, as long as they meet the eligibility requirements of the program. It confers only a limited set of rights, including a work permit but not a green card or a path to citizenship. Family members of DACA recipients do not get any derivative rights. DACA protection can be renewed after the initial two-year period if the program remains in effect.
If your DACA status expired after September 5, 2016, you must follow the DACA renewal process. If your DACA status expired before that date, you can get a "renewal" by completing your application as though you were filing for the first time. Ideally, you should file for renewal between 120 and 150 days before your status expires. Sometimes foreign nationals file more than 150 days ahead and receive a renewal, but this is not guaranteed, and USCIS will not return your filing fee if it determines that you filed too early. You no longer can apply for advance parole based on DACA, but immigration authorities will honor pre-existing advance parole documents. Still, traveling as a DACA recipient with advance parole may be risky in view of recent robust immigration enforcement practices.
The threshold requirements for DACA eligibility may change over time. Currently, the program applies to foreign nationals who came to the U.S. before they turned 16 and who have continuously resided in the U.S. between June 15, 2010 and the date of their DACA application. (A brief, minor departure will not affect their eligibility.) An applicant also must have been physically present in the U.S. on June 15, 2012 and on the date of their application. You can be eligible either if you arrived in the U.S. without inspection before June 15, 2012 or if you lost your legal status in the U.S. before June 15, 2012. You must not have a felony conviction, a conviction of a significant misdemeanor, or three or more ordinary misdemeanor convictions on your record, and you must not pose a risk to public safety or national security. Finally, DACA is available only to foreign nationals who are currently enrolled in school, have graduated from high school or have received a GED certificate, or have received an honorable discharge from the U.S. armed forces or coast guard.
You must supply proof to USCIS that you meet each specific criterion discussed above. Being unable to satisfy any of the DACA criteria will result in the denial of your application. A common obstacle for applicants is showing that their school qualifies under USCIS rules. (Read more here about the school requirement.) Complex issues also can arise from an applicant’s criminal record, as discussed below. (Read more here about criminal bars to DACA eligibility.)
A foreign national may feel reluctant to apply for DACA if they are not sure whether they will be found eligible. Filing the application necessarily involves admitting that they do not have legal status in the U.S., so they could be subject to deportation if the application is denied. To reduce these fears, USCIS has stated that it does not provide Immigration and Customs Enforcement (ICE) with the personal information of DACA applicants and their family members.
Misdemeanors and DACA
In considering whether to file a DACA application, you may wonder which types of crimes qualify as significant misdemeanors. USCIS rules provide that significant misdemeanors include domestic violence, sex crimes, many gun crimes, DUI, burglary, and drug trafficking, regardless of the actual prison term imposed on the individual. A crime also may fall within this category if the foreign national received a prison term longer than 90 days, excluding a suspended sentence or any period of detention while awaiting trial.
By contrast, USCIS defines a non-significant misdemeanor as a misdemeanor that is not classified as a significant misdemeanor but would expose a defendant to a jail term of more than five days but less than a year.