DACA AND DREAM FOR UNDOCUMENTED STUDENTSJanet Rangi
The DREAM Act
The Federal Development, Relief, and Education for Alien Minors Act, also known as the DREAM Act, serves as a symbol of hope for undocumented youth. It would give those who were brought to the U.S. as children the opportunity to earn citizenship in the country they know as home.
The DREAM Act, initially proposed in 2001, has gone through many incarnations, all of them rejected by Congress. The latest version, recently introduced as the bipartisan DREAM Act of 2017, represents another opportunity to pave the path to citizenship for undocumented students.
DREAM ACT REQUIREMENTS
1. 35 years of age or younger at the time the act is passed;
2. Younger than 16 at the time of entrance into the U.S.;
3. Enrolled in or a graduate from a U.S. higher education institute or have a U.S. high school diploma or GED
At time of application, undocumented individuals must have:
In its present configuration, the path to citizenship provided by the DREAM Act would be a six-year journey. It would begin with granting “conditional” permanent residency to qualified undocumented immigrants who enroll in college or serve in the military. College or military requirements could be met in a variety of ways, including attending a community college or vocational school or serving in the National Guard. After meeting those requirements, conditional residency could be upgraded to permanent resident status, a key prerequisite for obtaining U.S. citizenship.
STATE DREAM ACTS
The DREAM Act when fully in place would lead to the repeal of Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). That provision discourages states from offering in-state tuition or other higher education benefits to undocumented students by requiring any state that does so to also offer the same tuition rates to citizens and lawful permanent residents who graduated from the state’s high schools but who do not now live in the state.
While the DREAM Act would not require states to provide in-state tuition to undocumented college students, it would repeal the IIRIRA stipulation that forces the states supporting undocumented students to support former state residents as well. This repeal would return authority for such a decision back to the states.
In the time since IIRIRA became law, nearly 20 state legislatures have decided it is worth the Section 505 penalty to offer undocumented college students and all other high school graduates from that state living elsewhere in-state tuition rates at public colleges and universities through their own state version of the DREAM Act. In these cases, state laws take precedent over the federal government’s provisions.
DACA: A TEMPORARY FIX
After the 112th Congress once again failed to pass the DREAM Act, President Obama directed the Department of Homeland security to initiate the DACA program, which essentially provides guidelines for applying “prosecutorial discretion” when dealing with young undocumented immigrants. Prosecutorial discretion could be interpreted to simply mean not deporting someone without proper legal status if they meet requirements outlined in the DREAM Act for conditional permanent residency. Undocumented students may qualify for DACA consideration if they:
were under age of 31 as of June 15th, 2012;
arrived in the U.S. before their 16th birthday;
have lived continuously in the U.S. from June 15, 2007 to the present;
are physically present in the U.S. on June 15, 2012 and upon making a request for DACA consideration;
had no lawful immigration status on June 15, 2012;
are currently in high school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or U.S. Armed Forces;
have not been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors, and are not considered a risk to national security or public safety
Qualifying for DACA does defer action for a period of two years. This means that those who meet the above criteria are not faced with deportation, and they are considered to be in the U.S. lawfully. They may also apply for employment authorization. When a student qualifies for DACA, they can stay updated on the renewal process with the relevant authorities.
DACA status expires after two years, but renewal is possible. It is recommended that those who qualified for DACA submit their renewal forms no sooner and no later than four months before their two years are through. All forms are submitted to the U.S. Citizenship and Immigration Services website, and those applying for renewal must prove that they: still meet the initial guidelines;
have not left the U.S. during their deferment (unless for short visits);
have lived solely in the U.S. since their initial deferment was approved;
are not a threat to public or national safety;
have not been convicted of:
a significant misdemeanor (e.g., domestic violence, unlawful possession of a firearm, or a DUI/DWI);
three or more non-significant misdemeanors
Only the most recent version of Form I-821D will be accepted by the U.S. Citizenship and Immigration Services (USCIS) when applying for renewal. Renewal requests that are received earlier than four months before the current deferment expires may be rejected, but the forms may be resubmitted at a date closer to expiration.
CURRENT STATUS OF THE DACA PROCESS
President Donald Trump decided to scrap DACA that shielded so-called Dreamers from deportation, setting an expiry date of 5 March 2018.
Because of hiccups in passing the legislation , he announced a new plan that would allow people eligible for Deferred Action for Childhood Arrivals (Daca) to become citizens in 10-12 years.
Due to this developments, USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. Due to federal court orders on Jan. 9, 2018 and Feb. 13, 2018, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. The scope of the Feb. 13 preliminary injunction issued in the Eastern District of New York is the same as the Jan. 9 preliminary injunction issued in the Northern District of California. Unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017, until further notice.
Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.
If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
If you previously received DACA and your DACA expired before Sept. 5, 2016, or your most recent DACA grant was previously terminated, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but you may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.
Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. Further, deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. DACA requests will be adjudicated under the guidelines set forth in the
June 15, 2012 DACA memo (PDF).
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