Over the last decade, Congress has invested a lot of time and political energy into finding a way to allow undocumented immigrants who arrived as youths to stay in the United States and eventually gain a path to citizenship or permanent residency. Unfortunately, despite the numerous possibilities floated in Congress over the years, a comprehensive immigration law remains elusive. In an effort to find a temporary solution, President Obama created the Deferred Action for Childhood Arrivals (DACA) immigration policy in June 2012. DACA allows eligible individuals brought into the United States illegally as children a reprieve from prosecution and deportation for a period of two years.
In September 2017, President Trump initiated a plan to phase out the DACA policy. Extensive litigation has followed, allowing most current DACA recipients the ability to renew their DACA status. However, as of this writing, new DACA applications are not being accepted. Many of the lawsuits disputing the legality of DACA and the legality of Trump’s motion to rescind DACA are moving through the court system in a series of appeals, meaning that the future for DACA students is yet unclear. This guide aims to provide current information about the changes to DACA policy and an explanation of student rights and resources.
What Does DACA Do for Students?
Given the political divisiveness and complexity of immigration policy in the United States, there is often confusion about DACA. Below is a list of what DACA does and does not do for eligible individuals.
Grant temporary administrative safety from deportation.
Allow recipients the ability to obtain a work permit.
Make it possible to apply for a social security number.
Provide an opportunity to get a valid driver’s license.
Have detailed eligibility requirements. DACA applies only to current students, high school graduates, GED holders and honorably discharged veterans who meet all other requirements.
Last forever. An individual’s DACA status expires after two years and must be renewed.
Provide a direct path to citizenship or permanent residency in the United States.
Create an opportunity to temporarily avoid deportation. Only individuals who meet strict eligibility requirements anyone may receive DACA status.
Make a student eligible for federal financial aid, although some private and state-based financial aid is available for undocumented students.
Offer protections to individuals who have committed felonies, serious misdemeanors or pose a threat to public safety.
Expert Q&A: What Are the Rights of DACA Students?
Meet the Experts
Susan Cohen is a nationally recognized immigration lawyer. As Founding Chair of Mintz’s Immigration Practice, she works with corporate clients to address their immigration challenges. Susan is very active in the American Immigration Lawyers Association (AILA) and has contributed to federal and state immigration regulations.
Darwin Velasquez was born in La Union, El Salvador. At 12 years old, Darwin left for the United States with one set of clothes, his 11-year-old brother, and $250 between the two them. Once enrolled in Washington George High School, Darwin joined College Track San Francisco in the hopes of achieving his dream of going to college. In 2013, Darwin became the first in his family to graduate from high school and pursue a higher education. That same year, he also applied to and was granted Deferred Action for Childhood Arrivals (DACA).
Velasquez: Students have a variety of options. First, I recommend they visit the United States Citizenship and Immigration Services website. If there are any updates or changes on DACA, the government will post these announcements on the USCIS website. This website is also useful to check students’ DACA renewal status.
Second, sometimes it’s a bit difficult to understand legal language provided by the government. For this reason, I like to check the Immigration Legal Resource Center website. The ILRC provides comprehensive FAQ’s about DACA immediately after each announcement. Finally, the American Civil Liberties Union is also a fantastic resource, not only to understand the latest on DACA, but to understand our rights with or without DACA.
Cohen: There is always a chance that ICE officers could show up at the door. Possible reasons why ICE could show up include: if the DACA recipient has been arrested or involved in a criminal incident or even a traffic incident; if the DACA recipient lives in the household of someone who does not have immigration status; if ICE suspects that the DACA recipient has abused public benefits; if ICE suspects that the DACA recipient has broken a U.S. law.
Velasquez: I could write a dissertation on this question! It depends on the type of organization or institution. For non-profit organizations, they are not obligated to share any information with ICE unless agents have a warrant. In other words, no warrant, no access. ICE officers can enter the facilities with a warrant or with voluntary permission given to the officer by an employee of the company. I strongly advise companies hold a training with their employees to know how to respond in the event ICE shows up to their organization.
Institutions are also not obligated to provide information about any particular student’s immigration status. Sometimes, ICE may try to intimidate their way to confidential information about a student. Staff at colleges and universities should be familiar with a real warrant signed by an immigration judge and a fake warrant.
Cohen: If the DACA student is concerned about other people in the household, or about another vulnerability, the student could choose not to open the door unless ICE has a warrant signed by a judge. If he/she chooses not to open the door, the DACA recipient should slide a card under the door or hold it up to a window indicating that they are exercising their right to remain silent and request to see an arrest warrant that has been signed by a judge. They should place a call to their immigration attorney and if they do not have an immigration attorney, they should call a U.S. citizen friend or family member to inform them of what is happening.
A DACA student may choose to open the door and share his or her DACA-related documents and identity documents with the ICE officer. It is best to succinctly answer questions and not to volunteer any additional information.
Velasquez: It’s a harsh reality, but I highly recommend that students and their families have a family preparedness plan in the event of an ICE visit. If ICE visits a student, they should know that they and their family have rights.
First, they have the right to remain silent. Second, ICE agents cannot make the student sign any documents without their full understanding of such documents or without their will. They also have the right to contact an attorney. A good family preparedness plan should have the contact information of an attorney they trust. Preparing for a situation like this is not easy. However, we are living in difficult times for the undocumented community.
Cohen: DACA recipients with still-valid DACA status are legally authorized to be in the U.S. If they have received an Employment Authorization Document (EAD), they are entitled to use that document to work throughout the validity period of the EAD.
Everyone in the U.S., whether documented or not, has certain rights under the U.S. Constitution. These include the right to remain silent and not answer questions; the right to see an arrest warrant; the right to make a phone call; and the right to speak to a lawyer. Everyone has the right not to sign any documents before consulting with a lawyer.
Velasquez: If a student has DACA, they have a work permit to legally gain employment in the United States. They also have the right to obtain a driver’s license. Additionally, with a state ID or driver’s license, they can travel within the United States and Puerto Rico. As a DACA recipient, they can also apply to open a bank account, and in some backs, they may qualify for a secure credit card to start building a line of credit. Please note students are not eligible to have a regular credit card without first having a secure credit card for at least one year. DACA recipients can obtain a regular credit card without first having a secure credit card, but only if the student has a U.S. Permanent Resident or U.S. Citizen cosigner.
Cohen: DACA students should meet with an experienced, qualified immigration attorney to understand what their legal immigration options are now, and in the future if the program is terminated. It is important to meet only with highly qualified attorneys, who have been recommended, and not with notarios, or non-attorneys. As part of the meeting with the immigration attorney, the DACA student should review exactly what to do if they are confronted or arrested by an ICE officer and ask permission to contact the immigration attorney in an emergency, even if it is not during regular business hours. They should secure a “Know Your Rights” card or document from the attorney or from a non-profit organization, that provides legal assistance to DACA recipients, and they should keep a copy of the card in their home, and a copy in their wallet.
Velasquez: The best step students can take is to renew their DACA one year in advance of the expiration date. In the past, 120 days before expiration was ok, and while it still is, the sooner students renew the better. Don’t risk it and renew one year in advance instead. Students should also consult with an attorney to see if they are eligible to obtain other immigration remedies. There are many ways to become s U.S. Permanent Residents. On a case by case scenario, one may be eligible for something the student didn’t know about.
Cohen: Students should ask to see identification, or ask the officer to identify himself or herself. The student should also ensure that any warrant presented is valid, as not all of them are. Ask the officer to slip the document under the door. To be valid it must contain the recipient’s name, address, and a signature. If it appears valid, look to see if it was issued by a court or by ICE. If it was issued by a court, and authorizes a search of your house, then you must allow the officer into the house. If it was issued by ICE, then it does not authorize a search of the house. In this case the DACA student could choose to go outside and meet with the officers there, especially if there are other people living in the house who are vulnerable. If the officer does not have a warrant to enter the house, and the officer asks for permission to enter the house, the student is absolutely not required to give permission to enter.
Students should have a pre-arranged plan with an immigration attorney and with a trusted friend or family member in the event the student is arrested or detained. This should include keeping their passport and other identity documents (birth certificate) in a safe place; having a contact list so the trusted friend or family member can contact others (lawyer, friends, family, employer etc.), and having a bag packed with essentials to take if being detained.
Velasquez: A scenario not many of us like to think about is unemployment. For the time being, students can renew DACA, but the U.S. Supreme Court will ultimately decide what happens with this policy. If the Supreme Court rules that DACA is unconstitutional, the government will likely cancel all DACA work authorizations. In terms of deportation as a DACA-holding student, it is very unlikely that they would be deported unless he or she commits a crime. The government granted DACA to young people who wanted to live and work in the U.S. and were not considered a “threat” to this country – all DACA recipients passed an extensive background check. In other words, deportation is a possibility, but only if you commit a crime or if you leave the country voluntarily.
Cohen: DACA students should be careful to obey the law to avoid any risk to their DACA status. For example, if they have a driver’s license, they should make sure not to drive if their license expires. They should carefully follow all traffic rules, as sometimes even what seems like a minor traffic infraction could be serious enough to jeopardize one’s DACA status. In general, they should keep a low profile.
While some DACA students may have applied for Advance Parole travel permission, they should not consider leaving the United States without carefully vetting the risks of doing so with a competent immigration lawyer. A DACA recipient should not file applications for any other immigration benefits without the advice and assistance of a qualified immigration lawyer.
The legal landscape regarding DACA is in flux. Several courts have stopped the Trump administration from ending the program and for now, DACA renewal applications are still being accepted by USCIS. However, the current status is subject to change. It is imperative that DACA students remain up to date regarding the very fluid legal situation. In particular, DACA students should meet with an immigration lawyer to discuss what their next steps should be if the DACA program is terminated.
Velasquez: I would like to emphasize that there are plenty of college students without DACA, many of whom arrived after June 15th, 2007. These students matter. This is why a comprehensive immigration reform is needed. Parents who lived [in the United States] for over 10 years are also in this category without hope of one day adjusting their status.
How to Apply for DACA Renewal
The current and future status of DACA is in limbo, so it can be difficult to understand what actions students should take right now. This uncertainty is a major reason as to why those who wish to renew DACA may need to act sooner rather than later. If Congress or the courts eventually rule to eliminate DACA, it would be more difficult (although not impossible) to deport someone who has already renewed their DACA status than to deport someone who has let their DACA status lapse or failed to apply for a DACA renewal before deadline.
Given that it may take several months to process and approve a DACA renewal application, anyone wishing to apply for a renewal should do so at least five months before their current DACA status expires.ASO
It may also be helpful for applicants to seek legal assistance from an attorney, a local immigration organization or student services department at school.
- 1. Determine Eligibility for Renewal
For individuals to renew their DACA status, they must meet the original 2012 DACA eligibility guidelines as well as:
- Not have left the United States on or after August 15, 2012, unless they did so with advance parole;
- Stayed within the United States since being approved for the most recent DACA request;
- Have done nothing to indicate they might be a threat to the United States or other individuals; and
- Have no significant criminal history. This means none of the following convictions: a felony, a significant misdemeanor or more than two minor misdemeanors.
- 2. Complete the Necessary Forms
A DACA renewal application must include the following three forms:
- Form I-821D: Consideration of Deferred Action for Childhood Arrivals.
- Form I-765: Application for Employment Authorization.
- Form I-675 Worksheet.
Applicants must complete the most recent version of the forms. If the applicant is represented by an attorney or wishes to receive electronic notification of the DACA renewal application being received, they must also complete:
- 3. Pay the Renewal Fee
The basic DACA renewal application fee is $495. In a few extreme cases, the applicant may receive exemption from paying this fee.
- 4. Submit Supporting Documentation
Applicants who have a criminal record or have been involved in any removal procedures not previously brought to the attention of US Citizenship and Immigration Services (USCIS) in a prior DACA application will need to provide the necessary documentation concerning the nature of the criminal or removal proceedings.
Those whose DACA status expired before September 5, 2016 will have to apply as if they are applying for the first time. This means they may need to submit documentation to confirm their identity, such as a passport or state-issued ID showing date of birth.
All applicants, regardless of criminal or removal history, must also submit the following documentation:
- Work permit or other form of EAD (Employment Authorization Document). The applicant should submit a copy of this document and keep the original.
- Two recent passport-type photographs.
- 5. Turn in the DACA Renewal Application
The DACA renewal application must be sent to the appropriate USCIS location based on where the applicant lives.
- 6. Complete a Background Check
After the USCIS receives the application, they will request that the applicant provide fingerprints to complete a background check.
- 7. Provide Additional Information
In certain instances, the USCIS may request more information from the applicant. If this happens, the applicant must comply with the information request before their DACA renewal can be approved.
In Depth: The Story of DACA and the Legal Battles
It hasn’t always been smooth sailing for DACA, which should come as no surprise: political disagreement over the DREAM Act and similar proposed laws is the reason DACA was created in the first place. Like many other things that come out of Washington, DACA represents a variety of compromises. As a result, many attempts have been made to change or eliminate the DACA policy. Many of these legal challenges are still pending a final court decision or are on appeal.
Here’s a brief history of the DACA policy and the past and current lawsuits surrounding it:
The Obama administration announces the creation of DACA in response to Congress’ inability to pass an immigration law, such as the DREAM Act, that provides comparable benefits to those brought into the United States illegally when they were only children.
The U.S. Citizenship and Immigration Service begins receiving and accepting DACA applications.
President Obama announces his desire to expand DACA to include individuals who entered the United States outside the prescribed time window. This attempt at DACA expansion never went into effect.
Batalla Vidal v. Nielsen is initially filed in New York federal district court concerning the reversal of employment authorization, but later modified in 2018 to challenge the reversal of DACA. Many subsequent cases concerning DACA have been consolidated or merged into this case.
President Trump’s administration announces the termination of DACA. Under the terms of the termination, individuals who filed a first-time or a renewal application by September 5, 2017 would have their applications processed normally. Those whose had their DACA status ending between September 5, 2017 and March 5, 2018 would be allowed to apply for a DACA renewal.
New York v. Trump, et al. is filed in New York federal district court challenging the legality of terminating DACA. This case has been consolidated into the Batalla Vidal v. Nielsen court case.
Regents of the University of California v. Dept. of Homeland Security is filed in California federal district court alleging the termination of DACA is improper.
The National Association for the Advancement of Colored People v. Trump case is filed in federal district court in Washington, D.C. on the basis that the DACA termination is unlawful.
CASA de Maryland v. Trump is filed in federal district court in Maryland concerning the legality of ending DACA. The district court ruled termination of DACA was legal, but that the federal government cannot use information from DACA applications for deportation or other immigration enforcement reasons. Both sides have appealed; this case is currently pending before a federal appeals court.
Court grants preliminary injunction in Batalla Vidal v. Nielsen allowing DACA renewals to continue. This case is on appeal to a federal appeals court, but there has also been a request for the case to be heard before the U.S. Supreme Court before the federal appeals court issues a decision.
The court in NAACP v. Trump concludes that DACA should be reinstated. This would allow not only DACA renewals to take place, but would also provide opportunities for first-time applications as well. However, the portion of the court’s decision concerning DACA first-time applicants is not currently in effect. This case is on appeal to a federal appeals court, although the federal government has requested the U.S. Supreme Court to decide before the federal appeals court does.
The Texas, et al v. Nielsen, et al. case begins in federal district court in Texas. Unlike other court cases where the plaintiffs have challenged whether DACA can be rescinded, this case looks at whether DACA was even legal to begin with.
The court in Texas, et al v. Nielsen, et al. denies a request to stop DACA, allowing DACA renewals to continue. The case is scheduled to proceed at the district court level.
Federal appeals court in Regents of the University of California v. DHS upholds trial court’s granting of preliminary injunction that allows DACA renewals to take place. The federal government has filed an appeal.
Source: National Immigration Law Center
Essential Resources for DACA Students
Individuals who take advantage of the DACA program may not always have the same opportunities as other students, especially those with citizenship. Fortunately, a variety of organizations exist to help DACA students in many ways, from becoming citizens to paying for college.
- American Immigration Council: A nonprofit organization devoted to promoting and supporting immigration in the United States by using the court system, advocating for policy changes and sponsoring cultural exchange programs. This organization’s website also has a variety of articles that explain immigration procedures and laws.
- American Immigration Lawyers Association (AILA): The AILA is a professional organization for US attorneys and professors that practice and teach immigration law, but it also has immigration resources, including a lawyer locator and a legal research section.
- Immigration Advocates Network: Serves both immigration professionals and immigrants who need more information about the immigration process. Its website also has nationwide directory of free and low-cost legal services.
- Immigration Equality: As the primary LGBTQ immigrant rights organization, Immigration Equality offers a plethora of legal and information resources for undocumented immigrants as well as opportunities to get involved by volunteering.
- ImmigrationLawHelp.org: An online database to help low-income immigrants find legal assistance in their local area.
- Immigrants Rising: Advocates on behalf of undocumented youth to create policy changes; also provides financial resources and a legal intake service.
- National Immigration Law Center (NILC): Low-income immigrants are the focus of the NILC. Its services include advocacy and immigration litigation.
- TheDream.us: This organization’s mission is to help DREAMers obtain a college degree, largely through the granting of scholarships. Its website also contains valuable tools, including where to get legal help.
- United We Dream: Works to help undocumented youth in the United States by empowering them and allowing their voice to be heard. This organization also offers information about obtaining scholarships for college.
- U.S. Citizenship and Immigration Services (USCIS): USCIS is the federal government agency that oversees and administers immigration into the United States.
- U.S. Department of Education – Resource Guide: Supporting Undocumented Youth: The U.S. Department of Education provides a comprehensive guide to help undocumented students make the most of their primary and secondary education.