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DACA becomes Final Rule and made into Immigration law by Department of Homeland Security

☝Since President Clinton first started talking about the DREAM Act to legalize children brought into US without status by their adult family and guardians and who grew up in US without any status, the idea of legalizing the Dreamers has been floating around and discussed widely in United States. In every federal election, immigration advocates have pushed the government to give status to these now-adults who did not have a choice about coming to America and had nowhere to go after so many years in United States.

In response to this problem, President Obama took matters into his own hands and passed a Presidential Executive Order called Deferred Action for Childhood Arrivals, DACA for short. Deferred Action is a special status that U.S. immigration gives that makes someone non-deportable when they are living in US as long as they remain in good standing here.

What is DACA?

On June 15, 2012, President Obama created a policy called Deferred Action for Childhood Arrivals (DACA) through a Presidential Executive Order, making it possible for deferred action for certain undocumented young people who came to the U.S. as children. DACA Applications under this new program began on August 15, 2012. USCIS created new forms and began considering people for DACA, where they provided those approved for DACA with the following:

  🔸 deferred action status (non-deportability); and

  🔸 an Employment Authorization that lead to getting a Social Security Number;  and

  🔸 the ability to attend school and work in U.S. legally and pay taxes officially.

Deferred action was created to be a discretionary, limited immigration benefit by Department of Homeland Security via USCIS. USCIS officers can give DACA to immigrants who have never been in removal proceedings (immigration court proceedings), are currently in removal proceedings, or who have final orders of removal.  In other words, even if you had deportation and an order of removal, DACA gives the individual the status of being safe from deportation enforcement and a right to work and live in USA legally.

Individuals who have deferred action can apply for employment authorization and are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or to citizenship. Also, in limited cases approved DACA recipients can get an Advance Parole and travel to see family or loved ones in emergency and life or death situations and in returning in legal status fix their “nonadmissibility” issues such as having originally come into US without a visa at all or with some transit status. After returning in this manner, the DACA recipient can get a Green Card through marriage or some other pathway of adjustment of status they qualify for.

👉Immigrants must meet following criteria to apply for DACA:

◾Are under 31 years of age as of June 15, 2012;

◾Came to the U.S. while under the age of 16;

◾Have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five-year period, brief absences from the United States for humanitarian reasons will not be included);

◾Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;

◾Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;

◾Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;

◾Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors of any kind; and

◾Do not pose a threat to national security or public safety.

On August 24, 2022, DHS Secretary Alejandro N. Mayorkas  announced that the DHS has issued a final rule codifying DACA and making it into a new immigration law. 

📂Since its inception in 2012, DACA has allowed over 800,000 young people to remain in the only country many of them have ever known, with their families. Across the country, DACA recipients are doctors and nurses, working to ensure the health and safety of Americans; they are teachers, striving to give back to younger generations; they are members of our military serving to protect our country; lawyers, engineers, scientists; they are our neighbors, friends, and family.

The rule continues the DACA policy as announced in 2012 as proposed by President Obama. The new final rule declares that DACA recipients should not be a priority for removal.  

The final DACA Rule:

◾Maintains the existing threshold criteria for DACA;

◾Retains the existing process for DACA requestors to seek work authorization; and

◾Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.

The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021, the injunction from the U.S. District Court for the Southern District of Texas (freezing all NEW DACA applications) remains in effect.

❕DHS is prohibited from granting initial (NEW) DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.

In simple words, if you had DACA, you may continue to renew your Work Authorization and status under this new final rule. If you have a pending DACA Application, for now it will remain frozen and pending.

No new DACA applications are being accepted at this time.

✅Call SHEPELSKY LAW GROUP today for DACA renewal and all your immigration needs!

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