As an immigration lawyer, I applaud President Obama for taking Executive Action to fix our nation’s broken immigration system. A key component of Obama’s Executive Action is DAPA or Deferred Action for Parents of Americans and Lawful Permanent Residents, which essentially extends DACA (Deferred Action for Childhood Arrivals) to include certain eligible parents of U.S. citizens and lawful permanent residents.
What’s going on with DAPA? Here’s an update (stay tuned for further developments!)
As you may know, GOP governors have launched a partisan legal attack on Obama’s 2014 Executive Action on immigration. In Texas v. U.S.A., federal district court Judge Hanen issued an injunction, which stopped millions of immigrants from apply for benefits under 2 program: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program. On April 17, 2015, the Obama Administration has
DAPA’s future: an immigration lawyer’s prediction
Immigration lawyers like me are constantly asked to speculate on the outcome of this DAPA litigation and whether the DAPA program will become a reality for parents of American citizens and green card holders. My take is that the lawsuit is doomed to fail. The Fifth Circuit is likely to rule that the GOP-controlled southern states who are the plaintiffs in the lawsuit lack standing because they are unable to prove that Obama’s immigration programs like DAPA and DACA have caused them an actual injury (or irreparable harm as is required for a preliminary injunction). I predict the Fifth Circuit will rule this way because of a similar recent decision, which you can read below.
DAPA is a discretionary form of immigration relief. Eligibility for DAPA is determined by USCIS (U.S. Citizenship & Immigration Services) on a case-by-case basis. To qualify for DAPA:
- you must have been physically present, continuously, in the United States since January 1, 2010. If you entered the U.S. after this cut-off date, then you don’t qualify for DAPA.
- you must have child who was born on or before November 20, 2014; if your child is born on November 21 or thereafter, then you are not eligible for DAPA.
- ou were physically present in the United States on November 20, 2014, the date that DAPA was announced.
- you have no lawful status on November 20, 2014.
- your child must have either a green card (legal permanent resident) or U.S. citizenship. Parents of DACA (Deferred Action for Childhood Arrivals) recipients are not eligible for DAPA.
- you must not have committed any serious crimes or otherwise have become an deportation enforcement priority, under the revised guidelines explained in Policies for Apprehension, Detention and Removal of Undocumented Immigrants Memorandum published on November 20, 2014
What benefits do you get if you’re approved for Deferred Action through DAPA?
If you apply for DAPA and are approved, you will two benefits:
- DAPA approval allows you to get a work permit (Employment Authorization Document or EAD card), which will be valid for a 3-year period. The work permit will allow you to apply for a social security card. And a work permit and a social security will enable you to qualify for a state driver’s license (at least in Massachusetts).
- DAPA, as with other forms of deferred action, will provide protection from deportation during the duration of its 3-year validity.
DAPA is not amnesty and it’s not a path to citizenship. DAPA doesn’t lead to a green card or permanent residency status.
Can DAPA be renewed after the 3-year expires?
DAPA was created by President Obama as an expression of prosecutorial discretion. After Obama leaves office, the next President could decide to continue DAPA, revise the program, or do away with it entirely.
Where can I find the actual memo, which describes and establishes the DAPA program?
Is there an age cut-off to qualify for DAPA?
DAPA has no age restrictions. You can be approved for deferred action through DAPA regardless of your age.
Can you apply for DAPA if your child leaves outside the United States?
The memo outlining DAPA eligibility does not require stateside residency of the qualifying child.
Would a stepchild or adopted child be sufficient to qualify for deferred action under DACA?
My guess is that the DAPA guidelines will require a stepchild or adopted child to meet the definition of a “child” from the Immigration and Nationality Act as of November 20, 2014.
Many DAPA applicant will have stepchildren. What they need to know is that a stepchild would meet the legal definition of “child” in the Immigration and Nationality Act, even if born out of wedlock, provided that the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.
For DAPA applications involving an adopted child, the underlying adoption would have to conform with the INA definition, which requires 2 years of physical custody and a finalized adoption before the child’s 16th birthday. DAPA applicants with step-children or adopted children will be USCIS will be releasing further guidelines on DAPA that will be answering these topics.
Taxes and DAPA: will you qualify for DAPA if you have been working under the table and have not been paying your taxes?
In his November 20, 2014 speech outlining Executive Action on immigration, Obama said that DAPA applicants would need to be willing to pay their fair share of taxes. But the actual memo establishing DAPA makes no mention whatsoever of taxes. So unless further guidelines are released, we can assume that proof of tax payment is not a requirement for DAPA.
When can you apply for DAPA?
USCIS will begin accepting application no later than May 19, 2015, 180 days from November 20, 2014, the date that Obama announced his Executive Action on immigration.
What is the application procedure for DAPA?
USCIS will soon release an immigration form for DAPA applications, but it hasn’t done so yet. I’ll be updating this website with additional information on DAPA when it becomes available.
What is the filing fee for DAPA?
DAPA applicants will have to pay USCIS a filing fee (biometrics and application) of $465. USCIS has said that it will no permit fee waivers, but will grant “very limited” fee exemptions.
Would someone who are subject to the “permanent bar” under Section 212(a)(9)(C) of the Immigration and Nationality Act still be eligible for deferred action under DAPA?
To clarify the problem, 212(a)(9)(C) says that “[a]ny alien who . . . has been unlawfully present in the United States for an aggregate period of more than 1 year . . . and who enters or attempts to reenter the United States without being admitted is inadmissible.” I believe that relief under DAPA would still be available, despite 212(a)(9)(C) inadmissible. Perhaps USCIS will release further guidance on this topic.
Are you eligible for DAPA if you have a final order of removal or deportation?
As an immigration lawyer with focused on deportation defense in Immigration Court, I’ve read through Obama’s Executive Action memos closely and here’s my understanding: DAPA won’t be available to people who otherwise fall within the newly-revised “enforcement priorities.” People who have final orders of removal or deportation issued after January 1, 2014 are considered Level 3 priorities. Does this mean that people with final orders issued after January 1, 2014 are ineligible for DAPA, but those with deportation orders, which became final before January 1, 2014 are eligible for DAPA? The result would be that people with “old” orders are eligible, but those with more recent orders are not. This makes DAPA seems absurdly arbitrary. If you’ve lived in the United States for 20 years and have 3 U.S. citizen kids, why should your eligibility for DAPA hinge on whether your removal/deportation order happened to have become final before or after January 1, 2014, a date, again, which is arbitrary. I await further information to clarify eligibility for DAPA.
Your Boston DAPA Lawyer
Applying for DAPA (Deferred Action for Deferred Action for Parents of Americans and Lawful Permanent Residents) is a big decision in your immigration journey. Why try to go it alone when you can entrust the success of your DAPA application to Joshua Goldstein, an experienced immigration lawyer, who specializes in deferred action cases. When you’re ready to take advantage of DAPA, call our Boston immigration law office today at (617) 722-0005.