Who qualifies for DACA?

This week in my Consulta Migratoria® column I answer a question from a reader who wants to know what it consists of and how he can qualify for the deferred action program for people who came to the United States as children.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

I came to the United States in 2002 at the age of 17. Since I came I have never left the country. I am currently 29 years old and I am studying at a community college. I will soon obtain my first college degree and I want to obtain a work permit.

I have no serious crimes. I have only been found guilty of two infractions: one traffic and the other for fishing in a park. I have heard about the deferred action program for undocumented youth and I would like to know if I am eligible. - Carlos V.

Carlos, congratulations that you are studying and will soon graduate from community college. I got my first college degree at a community college and the experience helped me a lot.

Unfortunately, you are not eligible for the Deferred Action for Childhood Arrivals (DACA) program because you arrived in the U.S. after your 16th birthday.

The eligibility requirements to apply for DACA are as follows:

● Have arrived in the U.S. before your 16th birthday.

● Not to have been older than 30 years of age on June 15, 2012.

● Have lived continuously in the U.S. for at least 5 years prior to June 15, 2012 and currently present in the country.

● Have entered without inspection before June 15, 2012 or your lawful immigration status expired on June 15, 2012.

● Be a high school graduate or in high school, including GED, or be a veteran of the armed forces.

● Not pose a threat to national security or public safety.

● Not have been convicted of a felony, significant misdemeanor or multiple felonies.

I recommend that you visit an immigration attorney as soon as possible to carefully evaluate your situation and determine your immigration options.

I am optimistic that there will be immigration reform in the future and you should prepare for it. For example, you should maintain excellent behavior, file your taxes if you have to. Also, you should keep evidence of every year you have lived in the U.S. and have a legal fund to be able to pay for the costs of the process.

Although you do not appear to be eligible for DACA, it is estimated that there are hundreds of thousands of people who are eligible and have not yet applied for the benefit. It is important that everyone who is eligible for DACA file an application.

It is better to have temporary protection from deportation than none at all. In addition, one of the most valuable benefits for people who are granted DACA is the ability to obtain a work permit. It should be clarified that the work permit is not automatic. The person must demonstrate that he or she has an economic need. The advantage is that with a work permit one can apply for a social security number and a driver's license.

Not everyone who entered the U.S. as a minor is eligible for DACA. There are cases that may seem easy, but in reality, could have complications.

Filing a DACA application is not just about filling out a form. It is recommended that an attorney evaluate each person's background to determine legal options, including eligibility for DACA and permanent residency.

To give you an idea, between August 15, 2012 and December 31, 2013, U.S. Citizenship and Immigration Services (USCIS) denied 15,968 DACA applications. Those individuals who submitted applications lost their money - a combined total of more than $$7 million in non-refundable processing costs.  

Perhaps applications were denied because people were ineligible, or because they did not fill out the form correctly. A legal evaluation could have helped determine whether or not the person should have applied.

Despite the thousands of denied applications, on the positive side, in the first year and a half since the DACA application period opened, USCIS approved 521,815 cases.

I remind you that you should never go to notaries or immigration consultants. They are prohibited by law from giving legal advice.

Consult with an immigration attorney or a government-accredited legal representative before beginning the process. Make sure they have a valid license before hiring them.

For more information and immigration tips, read my blog inmigracionhoy.com.

Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past President of the Hispanic National Bar Association and current President of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).