On November 20, 2014, President Obama announced executive actions to change immigration policy. One of these reforms, known as the Deferred Action for Parental Accountability (DAPA) program will provide protection from deportation and a work permit to certain parents of U.S. citizens and lawful permanent residents who have lived in the United States since January 1, 2010. Other reforms fall into three main categories: (i) changes to immigration enforcement policy; (ii) expanding the Deferred Action for Childhood Arrivals (DACA) program; and (iii) changes to certain visa programs. This FAQ focuses exclusively on changes to the DAPA program described in a Memorandum by DHS Secretary Jeh Johnson entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (“Deferred Action Memo”).
Q: What is the Deferred Action for Parental Accountability (DAPA) program?
DAPA is a new immigration administrative relief program announced by President Obama on November 20, 2014. DAPA will allow qualified people to apply for protection from deportation and work authorization for a period of three years. People eligible to apply for DAPA include certain undocumented immigrants who have been in the U.S. since before January 1, 2010 and who are the parent of a U.S. citizen or lawful permanent resident (LPR). DAPA does not grant people permanent immigration status or place them on a path to legal permanent residence.
Q: Who is eligible for DAPA?
Undocumented immigrants in the U.S. who:
- have at least one child of any age who is a U.S. citizen or LPR, and who was born on or before November 20, 2014;
- have continuously resided in the U.S. since before January 1, 2010;
- were in the U.S. and out of status on November 20, 2014;
- are in the US when they apply; and
- are not an enforcement priority for removal pursuant to the November 20, 2014 memorandum entitled Policies for the Apprehension, Detention, and Removal of Undocumented.
Applicants will be required to undergo background checks (biometrics). Applications will be decided on a case-by-case basis and adjudicators may consider “other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.”
Q: Will people have to demonstrate that they have paid taxes to be eligible to apply for DAPA?
Although President Obama spoke about paying taxes when he described the DAPA program in his November 20, 2014 announcement, the 2014 Deferred Action Memo describing requirements for DAPA does not list payment of taxes as an eligibility factor. At this point, we do not know if the application form will even ask about payment of taxes. It is possible that the payment or nonpayment of taxes may be considered under the discretionary factors.
Q: When can my client apply for DAPA?
Note that there is NO application process yet. U.S. Citizenship and Immigration Services (USCIS) will begin accepting applications within 180 days of the announcement (around May 19, 2015). Visit www.uscis.gov and http://www.adminrelief.org/ for updated information.
Q: How much will the DAPA application cost?
The DAPA application fee will be the same as the fee for the Deferred Action for Childhood Arrivals (DACA) program: $465. The fee includes the application for work authorization and fingerprinting and will cover the DAPA application.
Q. How is continuous residence defined? Can my client have left the United States for a short period, or must the residency since January 1, 2010 be uninterrupted?
Residency need not have been uninterrupted since January 1, 2010; however it is unclear precisely how DHS will define continuous residence. The 2014 Deferred Action Memo requires continuous “residence”, not uninterrupted physical presence. Immigration law distinguishes between residence and presence. Wherever a person is required to establish continuous residence for purposes of obtaining a benefit, departures are permissible provided they do not interrupt residence under the laws or policies of the benefit or program at issue. In DACA, a departure does not interrupt continuous residence if it is “brief, casual, and innocent.” We will have to see if similar guidance is issued with respect to the DAPA continuous residence requirement.
Q: Is there a maximum or minimum age for my client’s U.S. citizen or LPR child?
No. The child can be any age so long as he or she was born on or before November 20, 2014.
Q: Does my client’s child have to be a LPR or citizen as of November 20, 2014 or only be born on or before November 20, 2014?
Unknown. More information will be provided as it becomes available.
Q: If my client is a step-parent of a U.S. citizen/LPR child can she apply?
Right now this is unknown. More information will be provided as it becomes available.
Q: What if my client’s name is not on the U.S. citizen or LPR child’s birth certificate. Can he still apply?
Your client will have to show some sort of proof that he is the parent of a U.S. citizen or LPR child. It is unknown whether proof other than a birth certificate may be used. You could advise your client to start the process of establishing parentage which may lead to amending the birth certificate to add his name.
Q: What will happen to my client’s status after three years?
DAPA applicants will be able to apply for renewal of their deferred action and work authorization before it expires. Because DAPA is an administratively created program, however, a newpresident could change or end DAPA. However, applicants should always be informed of the risks as well as benefits of applying for any immigration benefit.
Q: Will my client be able to apply for a social security number?
People who receive work authorization will be able to obtain a social security number.
Q: What can my clients do to prepare for their DAPA applications?
You can advise clients to begin saving money for the application fee now. Clients can also begin gathering documents to prove identity, demonstrate that they have an eligible USC or LPR child, and satisfy the date of entry and continuous residence requirements. People who have had prior encounters with law enforcement and/or immigration authorities should obtain their criminal records and information regarding their immigration history. You should advise clients not to travel abroad before they have obtained deferred action and advance parole.
Examples of documents that may be used to show presence in the US:
- Union membership records
- Bank statements, cancelled checks, and money order receipts
- Billing statements or receipts (phone, electricity, water, rent, insurance, car insurance)
- Leases, rental agreements, property titles (house, car)
- Medical records: for yourself or your child if it lists your name on it
- Driver’s license or picture ID (the date issued on the card can be used)
- School records or other attendance certificates (if it is your child’s record, it should have your name on it)
- Proof of employment: W-2, tax returns, pay stubs or other pay receipts; photocopies of checks for individuals paid by personal check (past and present); letter from current or past employer on their letterhead stating the dates of employment (note: unless further guidance suggesting otherwise is provided, clients should not submit work-related documents that show a false name or false social security number)
Q: What kinds of criminal offenses or other conduct will disqualify people from DAPA?
People who are enforcement priorities according to the Department of Homeland Security November 20, 2014 memo, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” (DHS Enforcement Priorities Memo or Enforcement Memo) will not qualify for DAPA. The DHS Enforcement Priorities Memo includes the following enforcement priorities, each of which is subject to a balancing test (see next question):
Enforcement Priority 1
- Threat to National Security: People engaged in or suspected of terrorism or espionage or who otherwise pose a danger to national security
- People Apprehended at the Border or Ports of Entry While Attempting to Unlawfully Enter the U.S.
- Participation in a Criminal Street Gang:
- People convicted of an offense for which an element was active participation in a criminal street gang; or
- People 16 years or older, who intentionally participated in an organized criminal street gang to further the illegal activity of the gang.
- Note: Criminal street gang is defined at 18 USC 521(a) as an ongoing group, club, organization or association of 5 more persons:
(A) that has as 1 of its primary purposes the commission of 1 or more of the criminal offenses described in subsection (c);
(B) the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in subsection (c); and
(C) the activities of which affect interstate or foreign commerce.
- Felonies: Immigrants convicted of an offense considered a felony in the jurisdiction where they were convicted, except for state and local offenses for which immigration status is an essential element of the crime.
- Aggravated Felonies: Immigrants convicted of aggravated felonies defined at INA § 101(a)(43).
Enforcement Priority 2
- Three Misdemeanors: Immigrants convicted of three or more misdemeanor offenses, other than minor traffic offenses or state and local offenses for which immigration status is an essential element of the crime, provided the offenses arise out of three separate incidents.
- One Significant Misdemeanor: Immigrants convicted of a “significant misdemeanor,” defined as an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or one for which an individual was sentenced to time in custody of 90 days or more (the time must have been served and does not include suspended sentences).
- Immigration Violators:
- People who entered or re-entered the U.S. since January 1, 2014 or are apprehended at the border or ports of entry while attempting to unlawfully enter the U.S
- People who have significantly abused the visa or visa waiver program. Note that DHS has not defined what conduct falls within this category.
- People who have been issued a final order of removal on or after January 1, 2014.
Q: If my client falls into the enforcement priorities but also has other positive equities, is he still eligible for DAPA?
Possibly. The Enforcement Memo allows for certain DHS personnel to consider the totality of the circumstances in determining whether a person is an enforcement priority even where the person falls into one of the priorities outlined in the preceding question.
For each priority level 1 – 3, the DHS Enforcement Priorities Memo identifies a different standard of review. The Enforcement Memo also contains a nonexclusive list of factors to be considered in the totality of the circumstances. They are:
- Extenuating circumstances involving the offense of conviction
- Extended length of time since the offense of conviction
- Length of time in the U.S.
- Military Service
- Family or community ties in the U.S.
- Status as a victim, witness or plaintiff in civil or criminal proceedings
- Compelling humanitarian factors such as poor health, age, pregnancy, a young child or a seriously ill relative
Therefore, according to currently available information, it is possible that an applicant with a relatively minor criminal background or who has a final order of removal and strong positive equities or other extenuating circumstances may still be able to obtain DAPA. However, people should be aware that if they fall into an enforcement priority category, they may place themselves at risk for deportation if they submit an application.
Q: My client is in detention. What should I do?
ICE and CBP have been instructed to immediately begin identifying people in custody who meet the eligibility criteria in order to avoid spending resources on them. You or your detained client should notify the appropriate staff person in their detention facility if they believe that they qualify for DAPA. You or your client may also call the ICE Community and Detainee Helpline at 1-888-351-4024 or the Law Enforcement Support Center hotline at 1-855-448-6903 or send an email message to ERO.INFO@ice.dhs.gov.
Q: What should I do if my client is in removal proceedings?
ICE has been instructed to review pending removal cases and seek administrative closure or termination of cases for people who meet the DAPA criteria. It is also instructed to refer such people to USCIS for case-by-case determinations. People who are in removal proceedings but are not detained may apply for DAPA directly through USCIS once the application process begins. You may also request that the ICE attorney assigned to the case administratively close your client’s case.
Q: If my client receives DAPA will she be able to travel outside of the United States?
Unknown. At this time, DHS has not specified in writing that DAPA recipients will be eligible for advance parole to travel outside of the United States. Information on whether DAPA participants may apply for advance parole will be provided when available. Note that your client should not leave the United States before receiving DAPA and without advance parole.
Q: If my client appears to be eligible for DAPA, should I still screen for eligibility for other benefits?
Yes. You should screen your client for eligibility for other benefits because they may provide your client with permanent immigration relief. You should discuss all the available options with your client.