Published: August 16, 2012

Excitement and Confusion Reign as Obama’s Deferred Action Program is Implemented

Is this complicated? Could I end up in removal proceedings if I apply? Will my family end up in removal proceedings? Will a filing under the new program disqualify me from a green card through my pending family based petition? How long will it take for me to get my work permit? These are but a few of the dozens of questions raised by clients in the weeks immediately following the unveiling of the Deferred Action for Childhood Arrivals (DACA) program. Most recently, on August 14, the Department of Homeland Security (DHS) released the actual forms and filing instruction details, including news that as of August 15, DHS would start receiving applications. All the while an excited public remains understandably confused and scared about what they are getting into.

Although one might be tempted to answer the first question above with a “no”, the existence of the questions that follow speak to the fact that the program is as gray, as it is black and white. Its of course not to say folks should stay away from this program and not file. On the contrary, most eligible applicants may feel it worth whatever risk is at play since they stand to exponentially improve the quality of their lives and professional/educational opportunities with the issuance of an employment authorization document.

In sum, prospective applicants, in order to get a good night’s sleep after deciding to file – or not to file, must understand the risks at play and feel comfortable with the answers to their questions before putting their applications in the mailbox.

Back to the basics requirements. To be eligible under the program and receive a 2 year employment authorization, applicants must:

A) be in school, have completed high school or their G.E.D., or are an honorably discharged veteran from the U.S. armed forces or Coast Guard,
B) have continuously resided in the U.S. since June 15, 2007 and up to the present,
C) have not been convicted of a felony, a “significant” misdemeanor, or 3 “insignificant” misdemeanors,
D) came to the U.S. prior to their 16th birthday,
E) entered the U.S. without inspection prior to June 15, 2012, or whose immigration status expired as of that date,
F) were physically present in the U.S. on June 15, 2012, and at the time of submitting the DACA application and
G) were under the age of 31 as of June 15, 2012

Back to some more questions: Could the filing of a DACA application lead to removal proceedings? Unlikely. While the only thing we know for sure is that approved applicants will be issued 2 year employment authorization documents, it is most unlikely approved applicants, or any applicants – other than those with more serious criminal histories, will ever be placed in removal proceedings as a result of filing for DACA. Emphasis on the word “unlikely”.

But what if Mitt Romney is elected and he decides to not only reverse Obama’s DACA initiative, but to eventually turn against those applying by placing all applicants in removal proceedings? This is possible – as is a Chicago Cubs World Series win, but in my estimation, unlikely for a host of logistical and PR reasons. For prospective applicants truly concerned about such a scenario, the answer is quite simple: wait to decide until after the election.

If Obama wins, DACA applicants may feel more comfortable moving forward, knowing they are protected for at least another 4 years, and perhaps even beyond in the event Obama succeeds in pushing a permanent legislative mandate.

If Romney wins however, possible scenarios might include: a) a continuation of the DACA program (and also maybe even pushing Congress to enact a permanent legalization fix), b) a discontinuing of the program, but with no adverse action taken against applicants or c) adverse action taken against applicants, i.e. having applicants placed in removal proceedings.

There is no question that scenario “c” above, although remote, is scary, and so scary, perhaps, to prompt one to hold off. But also without question, the benefits of taking action now, no matter the risks, again, include the enormous life transforming event of being issued an employment authorization sooner, which means sooner eligibility to receive a social security number, which then means sooner eligibility to receive a driver’s license and/or state i.d. By holding off, the prospective applicant may very well find themselves at risk of scenario “b” where they are shut out of the program, and unable to benefit from whatever small window might now present itself.

Some quick answers to the remaining questions from above:

* Will my family end up in removal proceedings? Very, very, very (did I say, very?) unlikely.

* Will a filing under the new program disqualify me from a green card through my pending family based petition? In the vast majority of cases, no.

* How long will it take for me to get my work permit? No one knows for sure, but I would guess, within a 90 to 180 period following filing.

The decision to proceed, or not proceed, with a DACA application is of course a personal one, and depends on the individual’s circumstances, and overall risk tolerance. But the worst thing a prospective applicant can do is make an uninformed decision, whether it be to file, or not to file. A decision based on a mistaken impression of the law and process is something all prospective applicants must avoid.

Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois