DEFERRED ACTION
For Childhood Arrivals
For Childhood Arrivals
What is Deferred Action?
Deferred action is a discretionary decision by DHS not to pursue enforcement against a person for a specific period. A grant of deferred action does not alter an individual’s existing immigration status or provide a path to citizenship. Thus, deferred action cannot be used to establish eligibility for an immigration status that requires maintenance of lawful status. Deferred action, however, may allow a person to qualify for certain state benefits, such as drivers licenses, a social security card and a work permit, though state requirements vary.
While deferred action does not cure any prior or subsequent period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence for purposes of INA §§ 212(a)(9)(B) and (C)(i)(I) while in deferred action status4 or while a DACA request is pending if the individual filed a request before reaching age 18. DHS can renew or terminate a grant of deferred action at any time.
What are the Eligibility Criteria for DACA?
Determinations will be made on a case-by-case basis and are within the discretion of USCIS.
Will individuals who receive deferred action be eligible to work?
Yes. Under 8 C.F.R. § 274a.12(c)(14), individuals who receive deferred action may apply for and obtain employment authorization for the period of deferred action if they can establish “an economic necessity for employment.” An application for employment authorization and the accompanying worksheet should be filed concurrently with a DACA request. An individual who applies for and receives a renewal of deferred action separately must request a renewal of his or her employment authorization.
There is little guidance on what evidence is necessary to establish economic necessity for purposes of DACA, but it is important to distinguish between economic necessity and economic hardship. Economic necessity also governs requests for employment authorization by U visa holders, who are not required to demonstrate economic hardship. In practice, any individual with an approved DACA request who demonstrates a need for employment should be eligible for work authorization.
What is the process for requesting DACA?
On or after August 15, 2012, requesters — other than those in detention — should send a completed and signed Form I-821D (Consideration of Deferred Action for Childhood Arrivals) and supporting documentation, along with Form I-765 (Application for Employment Authorization), the Form I-765WS (Worksheet), and the requisite fees totaling $465,6 to the USCIS lockbox designated for their state of residence.7 Requesters must submit an Application for Employment Authorization and the associated fee. Once USCIS determines that a request is complete, the agency will send the requester a receipt notice, followed by an appointment notice requiring the requester to attend a biometrics appointment at an Application Support Center. Requesters who wish to receive notices via email or text message may submit a Form G-1145 (E-Notification of Application/Petition Acceptance).
All requesters will be subject to background checks as part of the review of their requests for deferred action.
Deferred action is a discretionary decision by DHS not to pursue enforcement against a person for a specific period. A grant of deferred action does not alter an individual’s existing immigration status or provide a path to citizenship. Thus, deferred action cannot be used to establish eligibility for an immigration status that requires maintenance of lawful status. Deferred action, however, may allow a person to qualify for certain state benefits, such as drivers licenses, a social security card and a work permit, though state requirements vary.
While deferred action does not cure any prior or subsequent period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence for purposes of INA §§ 212(a)(9)(B) and (C)(i)(I) while in deferred action status4 or while a DACA request is pending if the individual filed a request before reaching age 18. DHS can renew or terminate a grant of deferred action at any time.
What are the Eligibility Criteria for DACA?
- To establish eligibility for DACA, individuals must demonstrate that they:
- Were under the age of 31 on June 15, 2012;
- Arrived in the United States before turning 16;
- Continuously resided in the United States from June 15, 2007, to the present;
- Were physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from USCIS;
- Entered without inspection before June 15, 2012, or any lawful immigration status expired on or before June 15, 2012;5
- On the date of the request, are in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the U.S. Coast Guard or the U.S. Armed Forces;
- Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors occurring on different dates and arising out of different acts, omissions, or schemes of misconduct, and do not otherwise pose a threat to national security or public safety.
Determinations will be made on a case-by-case basis and are within the discretion of USCIS.
Will individuals who receive deferred action be eligible to work?
Yes. Under 8 C.F.R. § 274a.12(c)(14), individuals who receive deferred action may apply for and obtain employment authorization for the period of deferred action if they can establish “an economic necessity for employment.” An application for employment authorization and the accompanying worksheet should be filed concurrently with a DACA request. An individual who applies for and receives a renewal of deferred action separately must request a renewal of his or her employment authorization.
There is little guidance on what evidence is necessary to establish economic necessity for purposes of DACA, but it is important to distinguish between economic necessity and economic hardship. Economic necessity also governs requests for employment authorization by U visa holders, who are not required to demonstrate economic hardship. In practice, any individual with an approved DACA request who demonstrates a need for employment should be eligible for work authorization.
What is the process for requesting DACA?
On or after August 15, 2012, requesters — other than those in detention — should send a completed and signed Form I-821D (Consideration of Deferred Action for Childhood Arrivals) and supporting documentation, along with Form I-765 (Application for Employment Authorization), the Form I-765WS (Worksheet), and the requisite fees totaling $465,6 to the USCIS lockbox designated for their state of residence.7 Requesters must submit an Application for Employment Authorization and the associated fee. Once USCIS determines that a request is complete, the agency will send the requester a receipt notice, followed by an appointment notice requiring the requester to attend a biometrics appointment at an Application Support Center. Requesters who wish to receive notices via email or text message may submit a Form G-1145 (E-Notification of Application/Petition Acceptance).
All requesters will be subject to background checks as part of the review of their requests for deferred action.