An unnecessary DACA filing (and denial)

IMMIGRATION CORNER - Michael J. Gurfinkel (The Philippine Star) - May 5, 2013 - 12:00am

Recently, a young person came to my office, brokenhearted, because she had filed for Deferred Action for Childhood Arrivals (DACA) on her own, and had received a request for evidence (RFE) from the USCIS, asking for further documentation and proof of her eligibility. Unfortunately, she will not be able to establish her eligibility for DACA (or the accompanying work authorization), and her application will be denied.

What was her downfall? She arrived in the United States on June 24, 2007, when she was only 14 years old. She’s lived in the US since then, went to school, and committed no crimes. So how come her case is doomed? One of the requirements for DACA eligibility is that the person must have resided in the US continuously since  June 15, 2007. However, she arrived in the US on June 24, 2007, (or nine days too late to be eligible). She has her arrival/departure record (I ‑ 94), which is the little white postcard stapled in a person’s passport upon arrival, which clearly shows that she arrived on June 24, 2007.

Even if she tried to lie, and say that she “lost” her I-94, DHS still has a record of a person’s arrival in the US. (Remember, the I-94 is a long form, and CBP tears off the lower portion of the I-94 and staples it to your passport. The longer portion is retained by CBP, and the information is entered in their database. So, even if a person lost his or her I-94, Homeland Security can still check its data base, and verify information from its own records.

In another DACA case, the child had arrived in the US before June 15, 2007. The problem was that the child arrived one week after his 16th birthday. DACA requires, among other things, that the child arrived in the US before his or her 16th birthday ‑ not one week after. So, this child also would not be qualified.

The basic requirements for eligibility for DACA are that the applicant:     

1. Was under the age of 31 as of June 15, 2012;

2. Came to the United States before reaching his or her 16th birthday;

3. Has continuously resided in the United States since June 15, 2007, up to the present time;  

4. Was physically present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;

5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;

6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

In the above cases, the person resided in the US after the June 15, 2007 deadline or  after his 16th birthday. Therefore, their applications will be denied and they will lose their $465 filing fee.

If you think you (or your child) are eligible for DACA, including eligibility for work authorization, I would advise that you seek the assistance of an attorney, who can evaluate your situation and determine if you truly are eligible, and help you gather the appropriate proof and documentation and package the case, to greatly increase the chances of success. Our office has already had several DACA cases approved, and I can tell you that these young people are overjoyed at now having work authorization, driver’s license, etc., instead of living in the shadows, as they did for all the previous years.

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