On November 20, 2014, President Obama announced a new program under which the U.S. Department of Homeland Security (“DHS”) will not deport certain undocumented parents of U.S. citizens or lawful permanent resident children (“LPR”).  Since that time, much news has been made about this initiative – both in public and in the courtroom.  Here are some frequently asked questions regarding DAPA, along with real life answers to real life questions to dispel many of the myths that are currently circulating.

WHAT IS DAPA?

Deferred Action for Parents of Americans and Lawful Permanent Residents – or as it is more commonly called “DAPA,” is an executive level program that will provide individuals relief from deportation and work authorization.  Deferred action, in its simplest form, is a form of prosecutorial discretion – or administrative relief that has existed for a long time. Via this discretion, non–U.S. citizens are granted work authorization by DHS and are allowed to remain in the U.S. on a temporary basis.

DAPA is granted on a case-by-case basis. Even if you meet the minimum requirements (detailed below), DHS may still deny your case. As announced, DAPA approvals will be granted in three year increments, and may be renewed.

A grant of deferred action is temporary. However, a person granted deferred action is considered by the federal government to be lawfully present in the U.S. for as long as the grant of deferred action.

WHEN CAN I APPLY FOR DAPA

As originally announced, DHS was going to begin accepting DAPA application in mid-2015.  However, a federal district court in Texas has issued an order (injunction) that temporarily blocks the DAPA program (and expanded DACA program) from being implemented. This means that people will not be able to apply for DAPA until a court issues an order that allows the initiative to go forward.

The information about DAPA contained herein is based on what we know about the existing DACA program and its implementation.

WARNING:  DO NOT TAKE ADVICE ABOUT YOUR IMMIGRATION CASE FROM “NOTARIOS,” NOTARY PUBLICS, OR CONSULTANTS. ONLY A LICENSED ATTORNEY OR AN ACCREDITED REPRESENTATIVE IS AUTHORIZED TO PROVIDE LEGAL ADVICE ABOUT YOUR CASE.

WHO IS ELIGIBLE FOR DAPA?

Based upon what we know at this time, to be eligible for deferred action under DAPA, you must:

  1. Be the parent of a U.S. citizen or lawful permanent resident;
  2. Have continuously lived in the U.S. since January 1, 2010;
  3. Have been present in the U.S. on November 20, 2014. (It’s also likely that you will need to be present in the U.S. every day from Nov. 20, 2014, until you apply for DAPA);
  4. Not have a lawful immigration status on November 20, 2014. To meet this requirement, (A) you must have entered the U.S. without papers, or, if you entered lawfully, your lawful immigration status must have expired before November 20, 2014; and (B) you must not have a lawful immigration status at the time you apply for DAPA; and
  5. Have not been convicted of certain criminal offenses, including any felonies and some misdemeanors.

HOW DO I APPLY?

You cannot apply for DAPA yet.  A federal district court in Texas has issued that prohibits DHS from initiating the DAPA program.  Although an emergency appeal has been taken to the Fifth Circuit Court of Appeals, as of now, the injunction has not been lifted.  Not until the injunction has been lifted will DHS announce how to apply for DAPA relief.

DOES DAPA REQUIRE BACKGROUND CHECKS?

Yes.  As part of the DAPA process, DHS will conduct background checks.

WHAT WILL IT COST?

DHS will charge a total application fee of $465:  $380 fee for the employment authorization application and an $85 fee for biometrics/fingerprints.  If you elect to hire an attorney to represent you, that will be an additional fee to be determined between you and your attorney.

HOW CAN I PROVE ELIGIBILITY?

DHS has yet to provide guidance on what documents will be acceptable. With that said, the following is a list of documents that you should begin gathering now:

  • Identity documents: your birth certificate and/or passport.
  • Relationship documents to prove that you are the parent of a U.S. citizen or lawful permanent child: your child’s birth certificate. Also, if your child is not a natural born U.S. citizen, copies of your child’s naturalization certificate, U.S. passport, of lawful permanent resident card (“green card”).
  • Proof of continuous residence in the U.S. since January 1, 2010: financial records (lease agreements, phone bills, credit card bills, bank statements), medical records, and school records (diplomas, GED certificates, report cards, school transcripts).  As a general rule, you should have at least one document for each 12-month period since January 1, 2010.  If you do not have documentary evidence to establish continuous residence since January, 2010, consider gathering affidavits from as many U.S. citizens as possible that have personal knowledge of your physical presence in the U.S. for any period of time in which you lack evidence.  The affidavit should state full name, date of birth, citizenship status, and detail how they know you and how they knew you during that time.
  • If you have ever been arrested, you must obtain certified copies of criminal dispositions from each court in which you had a criminal case. If the charges were dropped or never charged, you should obtain a copy of your complete criminal history from the police department that arrested you.  You may also consider obtaining a copy of your criminal history from the Federal Bureau of Investigation (“FBI”).

MUST I SUBMIT FEDERAL INCOME TAX RETURNS WITH MY APPLICATION?

At this time, there is no requirement that you show proof of having filed federal or state income tax returns.  However, if you have filed such returns, they can be used as evidence to show that you have been continuously present in the U.S. since January 1, 2010.  Additionally, showing that you have filed tax returns may also be a positive discretionary factor in your application.

WHAT IF I HAVE CRIMINAL HISTORY?

It is highly recommended that you speak with an immigration attorney before going any further.  Even if you have criminal history, it may be possible to apply for DAPA, but it will depend on the nature of the crimes committed and their disposition.

WHAT DO I GET IF MY DAPA APPLICATION IS GRANTED?

If you are successful in obtaining deferred action under DAPA, DHS will issue you a work permit that is valid for three years, and potentially will be renewable.

CAN I APPLY IF I HAVE DEPORTATION PROCEEDINGS PENDING?

People who are not detained may submit a DAPA application to DHS – even if they are currently in removal (“deportation”) proceedings, have a final removal order, or have a voluntary departure order.

IF MY APPLICATION IS DENIED, WILL I BE DEPORTED?

If your DAPA application is denied, DHS may refer your case to ICE for deportation proceedings, but only if it involves a criminal offense, fraud, or a threat to national security or public safety.  At present, it is against USCIS policy to refer cases for deportation when there no evidence of fraud, a criminal offense, or a threat to public safety or national security.  However, these are only current policies, and may be changed at any time.

CAN I TRAVEL WITH DAPA?

Yes, but only if you apply for and are granted “advance parole,” or a special form of permission from DHS to leave the U.S. for certain purposes, such as visiting a relative who lives abroad and is sick. We expect that, like DACA recipients, DAPA recipients will be able to apply for advance parole.

WILL I BE ABLE TO GET A SOCIAL SECURITY NUMBER?

Yes.  Once you are granted a work permit from DHS, it can be used to obtain a social security number from your local Social Security office.

WILL I QUALIFY FOR HEALTH CARE OR OTHER PUBLIC BENEFITS?

Generally speaking, No.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Immigration Attorney, Matthew L. White at  480.461.5304,  log on to udallshumway.com, or contact an attorney in your area.