Applying for an Immigration DREAM is actually a Complex Process

Yesterday marked the first day that undocumented young people can apply for deferred action. The USCIS is actually calling this program "Deferred Action for Childhood Arrivals", or DACA. This past June, the USCIS announced that undocumented young people who meet specific eligibility criteria could apply for deferred action. Deferred action allows people to remain in the U.S. without threat of removal (deportation). Under this program, it also allows people to apply for a renewable, two-year employment authorization document.

As a Silicon Valley immigration lawyer, I often meet people who have attempted to apply for a U.S. immigration benefit on their own, by following the instructions on the USCIS website. While plenty of people navigate the USCIS instructions without issues, the people I meet with who have done this have typically run into serious problems that result in denials or even removal proceedings. Simply because the forms are online, and typically ask for "simple" personal biographic information, does not mean the process is "simple". The real challenge is determining eligibility, evaluating risks if found to be ineligible, considering background information that can adversely affect an application, and compiling supporting documentation to establish that eligibility criteria are met.

As with other immigration benefits, for DACA, applicants must submit forms that can now be found on the USCIS website. Form I-821D appears straightforward enough, asking about biographic information, education, travels, and any criminal issues. But reviewing the USCIS main DACA page should alert applicants to the potential complexities and risks of applying for this benefit. The most important factor to consider is the risk to those people not currently in any removal proceedings. By coming forward and providing their contact information to the USCIS, applicants essentially put themselves on the U.S. government's radar. One of the headings on the USCIS' web page is, "Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?" The answer is, as long as the case qualifies for deferred action, then "no". Unless it's to prevent fraud, for national security purposes, or to investigate or prosecute crimes. In this same paragraph, the USCIS concludes with their own disclaimer that essentially states this policy can change at any time without notice. So basically, you take your chances if it makes more sense to go for it as opposed to remaining under the radar.

An example of just how complex it can be to determine whether an applicant meets the eligibility criteria is determining whether absences spent outside the U.S. from the beginning date of June 15, 2007, would break the continuity of residence requirement. Determining whether departures from the U.S. interrupt the continuous residence requirement, is actually making a legal analysis based on a 1963 U.S. Supreme Court Case, Rosenberg v. Fleuti, and its legal aftermath. The USCIS website uses the language from this Supreme Court case when it states that "brief, casual, and innocent absences from the United States will not interrupt your continuous residence." The adjectives "brief, casual, and innocent" are actually legal terms in this context. How long of a trip is considered "brief"? Is it "casual and innocent" if someone who left the U.S. "briefly" when they were 18 years old, knew that they were going to return to the U.S. illegally?

Another example is that applicants can qualify by showing that they are currently in school, or have graduated or obtained a GED. The USCIS offers an explanation of what it means to be "currently in school", and this can include enrollment in "an education, literacy, or career training program that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such a placement", and these types of programs can be funded by federal or state grants. If these types of programs are funded by other sources, the USCIS will consider many factors to determine whether such a program qualifies. For any schools other than a typical public high school, determining whether the school would qualify requires a careful analysis of school against these particular parameters.

Another layer of complexity is that applicants cannot have been convicted of a "significant" misdemeanor, or multiple non-significant misdemeanors. Determining whether a particular offense would constitute a "significant" misdemeanor or a non-significant misdemeanor requires analyzing the relevant statute in accordance with how the USCIS is defining these terms. Even then, the USCIS reminds applicants that regardless of how certain offenses are qualified, the USCIS still has discretion to deny a DACA application.

The lengthy instructions and explanations on the USCIS website do not even delve into the other factors that applicants should consider, including potential risks if denied, what would happen with other pending applications - if any, and whether an applicant might even have other, better options available. As there is no deadline, potential applicants should take their time to seek professional legal advice from licensed immigration lawyers or from the local legal clinics and organizations providing free legal advice.

Immigration Reform / by Michelle Gee