Deferred Action for Parental Accountability (DAPA) Frequently Asked Questions December 4, 2014
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- Caitlin Riley
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1 Deferred Actin fr Parental Accuntability (DAPA) Frequently Asked Questins December 4, 2014 On Nvember 20, 2014, President Obama annunced executive actins t change immigratin plicy. One f these refrms, knwn as the Deferred Actin fr Parental Accuntability (DAPA) prgram will prvide prtectin frm deprtatin and a wrk permit t certain parents f U.S. citizens and lawful permanent residents wh have lived in the United States since January 1, Other refrms fall int three main categries: (i) changes t immigratin enfrcement plicy; (ii) expanding the Deferred Actin fr Childhd Arrivals (DACA) prgram; and (iii) changes t certain visa prgrams. This FAQ fcuses exclusively n changes t the DAPA prgram described in a Memrandum by DHS Secretary Jeh Jhnsn entitled Exercising Prsecutrial Discretin with Respect t Individuals Wh Came t the United States as Children and with Respect t Certain Individuals Wh Are the Parents f U.S. Citizens r Permanent Residents ( Deferred Actin Mem ). Q: What is the Deferred Actin fr Parental Accuntability (DAPA) prgram? DAPA is a new immigratin administrative relief prgram annunced by President Obama n Nvember 20, DAPA will allw qualified peple t apply fr prtectin frm deprtatin and wrk authrizatin fr a perid f three years. Peple eligible t apply fr DAPA include certain undcumented immigrants wh have been in the U.S. since befre January 1, 2010 and wh are the parent f a U.S. citizen r lawful permanent resident (LPR). DAPA des nt grant peple permanent immigratin status r place them n a path t legal permanent residence. Q: Wh is eligible fr DAPA? Undcumented immigrants in the U.S. wh: 1. have at least ne child f any age wh is a U.S. citizen r LPR, and wh was brn n r befre Nvember 20, 2014; 2. have cntinuusly resided in the U.S. since befre January 1, 2010; 3. were in the U.S. and ut f status n Nvember 20, 2014; 4. are in the US when they apply; and 5. are nt an enfrcement pririty fr remval pursuant t the Nvember 20, 2014 memrandum entitled Plicies fr the Apprehensin, Detentin, and Remval f Undcumented. Applicants will be required t underg backgrund checks (bimetrics). Applicatins will be decided n a case-by-case basis and adjudicatrs may cnsider ther factrs that, in the exercise f discretin, makes the grant f deferred actin inapprpriate. Q: Will peple have t demnstrate that they have paid taxes t be eligible t apply fr DAPA? Althugh President Obama spke abut paying taxes when he described the DAPA prgram in his Nvember 20, 2014 annuncement, the 2014 Deferred Actin Mem describing requirements fr DAPA des nt list payment f taxes as an eligibility factr. At this pint, we d nt knw if the applicatin Develped by: Farmwrker Justice, NILC and ILRC Last Updated: December 15, 2014
2 frm will even ask abut payment f taxes. It is pssible that the payment r nnpayment f taxes may be cnsidered under the discretinary factrs. Q: When can my client apply fr DAPA? Nte that there is NO applicatin prcess yet. U.S. Citizenship and Immigratin Services (USCIS) will begin accepting applicatins within 180 days f the annuncement (arund May 19, 2015). Visit and fr updated infrmatin. Q: Hw much will the DAPA applicatin cst? The DAPA applicatin fee will be the same as the fee fr the Deferred Actin fr Childhd Arrivals (DACA) prgram: $465. The fee includes the applicatin fr wrk authrizatin and fingerprinting and will cver the DAPA applicatin. Q. Hw is cntinuus residence defined? Can my client have left the United States fr a shrt perid, r must the residency since January 1, 2010 be uninterrupted? Residency need nt have been uninterrupted since January 1, 2010; hwever it is unclear precisely hw DHS will define cntinuus residence. The 2014 Deferred Actin Mem requires cntinuus residence, nt uninterrupted physical presence. Immigratin law distinguishes between residence and presence. Wherever a persn is required t establish cntinuus residence fr purpses f btaining a benefit, departures are permissible prvided they d nt interrupt residence under the laws r plicies f the benefit r prgram at issue. In DACA, a departure des nt interrupt cntinuus residence if it is brief, casual, and inncent. We will have t see if similar guidance is issued with respect t the DAPA cntinuus residence requirement. Q: Is there a maximum r minimum age fr my client s U.S. citizen r LPR child? N. The child can be any age s lng as he r she was brn n r befre Nvember 20, Q: Des my client s child have t be a LPR r citizen as f Nvember 20, 2014 r nly be brn n r befre Nvember 20, 2014? Unknwn. Mre infrmatin will be prvided as it becmes available. Q: If my client is a step-parent f a U.S. citizen/lpr child can she ap ply? Right nw this is unknwn. Mre infrmatin will be prvided as it becmes available. Q: What if my client s name is nt n the U.S. citizen r LPR child s birth certificate. Can he still apply? Yur client will have t shw sme srt f prf that he is the parent f a U.S. citizen r LPR child. It is unknwn whether prf ther than a birth certificate may be used. Yu culd advise yur client t start the prcess f establishing parentage which may lead t amending the birth certificate t add his name. Q: What will happen t my client s status after three years? DAPA applicants will be able t apply fr renewal f their deferred actin and wrk authrizatin befre it expires. Because DAPA is an administratively created prgram, hwever, a new president culd change r end DAPA. Hwever, applicants shuld always be infrmed f the risks as well as benefits f applying fr any immigratin benefit. 2
3 Q: Will my client be able t apply fr a scial security number? Peple wh receive wrk authrizatin will be able t btain a scial security number. Q: What can my clients d t prepare fr their DAPA applicatins? Yu can advise clients t begin saving mney fr the applicatin fee nw. Clients can als begin gathering dcuments t prve identity, demnstrate that they have an eligible USC r LPR child, and satisfy the date f entry and cntinuus residence requirements. Peple wh have had prir encunters with law enfrcement and/r immigratin authrities shuld btain their criminal recrds and infrmatin regarding their immigratin histry. Yu shuld advise clients nt t travel abrad befre they have btained deferred actin and advance parle. Examples f dcuments that may be used t shw presence in the US: Unin membership recrds Bank statements, cancelled checks, and mney rder receipts Billing statements r receipts (phne, electricity, water, rent, insurance, car insurance) Leases, rental agreements, prperty titles (huse, car) Medical recrds: fr yurself r yur child if it lists yur name n it Driver s license r picture ID (the date issued n the card can be used) Schl recrds r ther attendance certificates (if it is yur child s recrd, it shuld have yur name n it) Prf f emplyment: W-2, tax returns, pay stubs r ther pay receipts; phtcpies f checks fr individuals paid by persnal check (past and present); letter frm current r past emplyer n their letterhead stating the dates f emplyment (nte: unless further guidance suggesting therwise is prvided, clients shuld nt submit wrk-related dcuments that shw a false name r false scial security number) Q: What kinds f criminal ffenses r ther cnduct will disqualify peple frm DAPA? Peple wh are enfrcement pririties accrding t the Department f Hmeland Security Nvember 20, 2014 mem, Plicies fr the Apprehensin, Detentin and Remval f Undcumented Immigrants, (DHS Enfrcement Pririties Mem r Enfrcement Mem) will nt qualify fr DAPA. The DHS Enfrcement Pririties Mem includes the fllwing enfrcement pririties, each f which is subject t a balancing test (see next questin): Enfrcement Pririty 1 Threat t Natinal Security: Peple engaged in r suspected f terrrism r espinage r wh therwise pse a danger t natinal security Peple Apprehended at the Brder r Prts f Entry While Attempting t Unlawfully Enter the U.S. Participatin in a Criminal Street Gang: Peple cnvicted f an ffense fr which an element was active participatin in a criminal street gang; r 3
4 Peple 16 years r lder, wh intentinally participated in an rganized criminal street gang t further the illegal activity f the gang. Nte: Criminal street gang is defined at 18 USC 521(a) as an nging grup, club, rganizatin r assciatin f 5 mre persns: (A) that has as 1 f its primary purpses the cmmissin f 1 r mre f the criminal ffenses described in subsectin (c); (B) the members f which engage, r have engaged within the past 5 years, in a cntinuing series f ffenses described in subsectin (c); and (C) the activities f which affect interstate r freign cmmerce. Felnies: Immigrants cnvicted f an ffense cnsidered a felny in the jurisdictin where they were cnvicted, except fr state and lcal ffenses fr which immigratin status is an essential element f the crime. Aggravated Felnies: Immigrants cnvicted f aggravated felnies defined at INA 101(a)(43). Enfrcement Pririty 2 Pririty 3 Three Misdemeanrs: Immigrants cnvicted f three r mre misdemeanr ffenses, ther than minr traffic ffenses r state and lcal ffenses fr which immigratin status is an essential element f the crime, prvided the ffenses arise ut f three separate incidents. One Significant Misdemeanr: Immigrants cnvicted f a significant misdemeanr, defined as an ffense f dmestic vilence; sexual abuse r explitatin; burglary; unlawful pssessin r use f a firearm; drug distributin r trafficking; r driving under the influence; r ne fr which an individual was sentenced t time in custdy f 90 days r mre (the time must have been served and des nt include suspended sentences). Immigratin Vilatrs: Peple wh entered r re-entered the U.S. since January 1, 2014 r are apprehended at the brder r prts f entry while attempting t unlawfully enter the U.S Peple wh have significantly abused the visa r visa waiver prgram. Nte that DHS has nt defined what cnduct falls within this categry. Peple wh have been issued a final rder f remval n r after January 1, Q: If my client falls int the enfrcement pririties but als has ther psitive equities, is he still eligible fr DAPA? Pssibly. The Enfrcement Mem allws fr certain DHS persnnel t cnsider the ttality f the circumstances in determining whether a persn is an enfrcement pririty even where the persn falls int ne f the pririties utlined in the preceding questin. Fr each pririty level 1 3, the DHS Enfrcement Pririties Mem identifies a different standard f review. The Enfrcement Mem als cntains a nnexclusive list f factrs t be cnsidered in the ttality f the circumstances. They are: Extenuating circumstances invlving the ffense f cnvictin Extended length f time since the ffense f cnvictin 4
5 Length f time in the U.S. Military Service Family r cmmunity ties in the U.S. Status as a victim, witness r plaintiff in civil r criminal prceedings Cmpelling humanitarian factrs such as pr health, age, pregnancy, a yung child r a seriusly ill relative Therefre, accrding t currently available infrmatin, it is pssible that an applicant with a relatively minr criminal backgrund r wh has a final rder f remval and strng psitive equities r ther extenuating circumstances may still be able t btain DAPA. Hwever, peple shuld be aware that if they fall int an enfrcement pririty categry, they may place themselves at risk fr deprtatin if they submit an applicatin. Q: My client is in detentin. What shuld I d? ICE and CBP have been instructed t immediately begin identifying peple in custdy wh meet the eligibility criteria in rder t avid spending resurces n them. Yu r yur detained client shuld ntify the apprpriate staff persn in their detentin facility if they believe that they qualify fr DAPA. Yu r yur client may als call the ICE Cmmunity and Detainee Helpline at r the Law Enfrcement Supprt Center htline at r send an message t ERO.INFO@ice.dhs.gv. Q: What shuld I d if my client is in remval prceedings? ICE has been instructed t review pending remval cases and seek administrative clsure r terminatin f cases fr peple wh meet the DAPA criteria. It is als instructed t refer such peple t USCIS fr case-by-case determinatins. Peple wh are in remval prceedings but are nt detained may apply fr DAPA directly thrugh USCIS nce the applicatin prcess begins. Yu may als request that the ICE attrney assigned t the case administratively clse yur client s case. Q: If my client receives DAPA will she be able t travel utside f the United States? Unknwn. At this time, DHS has nt specified in writing that DAPA recipients will be eligible fr advance parle t travel utside f the United States. Infrmatin n whether DAPA participants may apply fr advance parle will be prvided when available. Nte that yur client shuld nt leave the United States befre receiving DAPA and withut advance parle. Q: If my client appears t be eligible fr DAPA, shuld I still screen fr eligibility fr ther benefits? Yes. Yu shuld screen yur client fr eligibility fr ther benefits because they may prvide yur client with permanent immigratin relief. Yu shuld discuss all the available ptins with yur client. 5
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