Following federal court orders in 2021, DACA renewal remains available, but USCIS is not granting initial requests as of July 16, 2021. This situation is subject to change, which will be reflected on the USCIS website.
One of the main obstacles that a foreign national applying for DACA may face is the criminal conviction bar. They will not be eligible for DACA if they have a felony conviction on their record, if they have a significant misdemeanor conviction, or if they have three or more misdemeanor convictions. Many foreign nationals do not apply because they are concerned that they will be found ineligible on this basis, and they are reluctant to admit that they are unlawfully in the U.S. if they may not qualify for DACA.
Whether a misdemeanor is “significant” is determined by USCIS on a case-by-case basis.
The significant misdemeanor rule arose recently and lacks a clear definition. USCIS will conduct a fact-specific evaluation of each misdemeanor conviction to determine whether it should be considered significant. A handful of crimes are automatically considered significant misdemeanors. These are domestic violence, burglary, sexual abuse or exploitation, drug trafficking (or distribution), the unlawful possession or use of a firearm, and DUI (driving under the influence of alcohol or drugs). If a crime does not meet this definition, however, it still may be considered a significant misdemeanor.
Additional Bars Based on Misdemeanor Convictions
Under federal law, a misdemeanor is formally defined as any crime that can be punished by a jail sentence lasting between five days and one year. In deciding whether this classification applies, the actual sentence that the specific defendant received does not matter. However, USCIS most often will find that a misdemeanor outside the enumerated list of significant misdemeanors will qualify as a significant misdemeanor if the defendant actually received a sentence of more than 90 days in jail or prison. This time period does not account for a suspended sentence or any period during which the foreign national was in detention based on an immigration hold. It also does not account for any period during which the foreign national was held in jail prior to a trial, which might happen if they did not get bail.
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An experienced immigration lawyer may be able to help an individual determine whether their criminal record will make them ineligible for DACA.
Even if you were not sentenced to more than 90 days of imprisonment, USCIS still has the discretion to determine that a misdemeanor was significant, based on the circumstances. Thus, you may want to consult an immigration lawyer for guidance on whether you likely would be ineligible for DACA because of your record. An attorney also can help you collect evidence to show that a misdemeanor should not be considered significant or write a memorandum on your criminal history that you can include with your application.
Misdemeanors that were not significant may result in a bar to DACA relief if the foreign national has three or more misdemeanor convictions on their record. If the convictions resulted from the same sequence of criminal activity, though, this may count as only one misdemeanor in some cases.
Traffic Offenses and DACA
You will not be ineligible for DACA based on a traffic ticket, such as a simple speeding ticket or even a ticket for driving without a license. If your state charges DUI as a traffic ticket, however, this will be considered a significant misdemeanor even if you were not convicted of a misdemeanor under state law and did not receive a corresponding sentence.