On November 20, 2014, among the executive actions announced by President Obama, two of those initiatives involved changes in the immigration system that would affect millions of undocumented aliens in the U.S. – 1) the expansion of an existing program called Deferred Action for Childhood Arrivals (DACA), and 2) the implementation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
DACA, which was originally implemented in 2012, suspends removal of an undocumented alien for a temporary period of time under the policy of prosecutorial discretion. It does not provide permanent resident status or a path to U.S. citizenship. Currently, the eligibility requirements for DACA include: being under the age of 31 as of June 15, 2012; arrival in the U.S. before turning 16 years old; continuous residence in the U.S. since June 15, 2007; possessing no lawful status on June 15, 2012; currently attending school, or have a high school diploma, or has earned a GED; and lack of a felony conviction, significant misdemeanor, multiple misdemeanors, and/or threat to national security or public safety. Keep in mind that having a criminal record does not automatically preclude an applicant from DACA eligibility. USCIS examines the totality of the circumstances for each individual case to determine the exercise of prosecutorial discretion.
The new DACA program expands the above eligibility requirements to include applicants of any age who entered the U.S. before age 16, have lived in the U.S. continuously since January 1, 2010, and meet all other existing DACA guidelines. It also extends the period of deferred action and work authorization from the current period of two years to three years.
The new DAPA program also suspends removal of an undocumented alien for a temporary period of time. It will allow people who are parents of U.S. citizens and lawful permanent residents as of November 20, 2014, to apply for an initial three year period of deferred action and employment authorization. DAPA eligibility requires that applicants have resided in the U.S. continuously since January 1, 2010, pass background checks, and are not a removal priority as outlined in the November 20, 2014 Memorandum, Policies for The Apprehension, Detention and Removal of Undocumented Immigrants. Like DACA, it does not provide permanent resident status or a path to U.S. citizenship.
USCIS had arranged to begin accepting applications for the expanded DACA program on February 18, 2015, and had planned to accept applications for the new DAPA program in May 2015, however, this effort was impeded on February 16, 2015, when Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas, Brownsville Division, issued an order for preliminary injunction. The preliminary injunction has temporarily suspended USCIS from implementing the two new programs as Judge Hanen considers the lawsuit brought by 26 states seeking declaratory and injunctive relief against the United States and five federal officials for violation of the Take Care Clause of the U.S. Constitution and the Administrative Procedures Act.
On March 12, 2015, the U.S. Department of Justice filed an emergency motion for stay pending appeal of State of Texas, et al v. United States of America. If granted by the Fifth Circuit Court of Appeals, the Court order will halt the district court’s preliminary injunction on the expansion of DACA and implementation of DAPA in all states, or limit the preliminary injunction to the 26 states that are Plaintiffs to the lawsuit. In support of the DOJ’s motion to stay on the injunction, fourteen states and the District of Columbia filed an amicus brief the same day.
It is important to note that the preliminary injunction has no effect on the existing DACA program implemented under the guidelines issued in 2012. New applicants for DACA and those seeking to renew their status may continue to apply for and benefit from the existing DACA program.
The experienced attorneys at Just Law International, P.C. are ready to assist you in preparing your DACA application and also provide sound advice on how to prepare in advance for the expanded DACA and DAPA programs. Please contact us to schedule an appointment to discuss the details of your case.
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