USCIS Announces Additional Guidance for Deferred Action Applications (including DACA)
USCIS recently announced that all deferred action applications, including DACA applications, are going to be subject to additional scrutiny. Specifically, USCIS announced that meeting the threshold requirements will no longer be sufficient to obtain an approval. For example, the threshold requirements for DACA are:
Entered the United States prior to attaining 16 years of age;
Continuously resided in the United States since June 15, 2007, up to the date of filing;
Physically present in the United States on June 15, 2012, and at the time of filing the request for DACA with USCIS;
Had no lawful immigration status on June 15, 2012, and at the time of filing;
Currently enrolled in school, graduated or obtained a certificate of completion from a U.S. high school, obtained a GED certificate or equivalent, or is an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
Not been convicted of a felony, a misdemeanor as defined in the DACA regulations,[4] or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety; and
Born on or after June 16, 1981, and is at least 15 years of age at the time of filing, unless he or she is in removal proceedings, has a final order of removal, or has a voluntary departure order.
However, now USCIS announced that it is going to weigh additional factors, positive and negative, before determining if a grant of deferred action is appropriate. The USCIS Policy Manual has a non-exhaustive list of discretionary factors, which are also listed below:
Whether the alien has been considered for some other discretionary status expressly authorized by Congress;
Whether the alien’s continued presence in the United States, on balance, provides a benefit to the United States, its citizens, and its interests;
Whether the alien’s continued presence in the United States is needed for an ongoing investigation or enforcement action;
Whether there are unique compelling circumstances warranting a grant, such as the need for life saving medical treatment in the United States by the alien or the alien’s minor child;
Whether the alien possesses the financial means to support himself or herself;
Whether there is any compelling reason that the alien cannot or should not return to his or her home country or be removed to another safe country;
The alien’s immigration history, including the degree to which the alien has broken U.S. immigration law;
Extent to which identity can be established and aliases are disclosed;
Criminal history, including the nature and severity of any criminal conduct, as well as the time elapsed since the offense occurred and evidence of rehabilitation, and the actual sentence or fine that was imposed, as an indicator of the seriousness attributed to the conduct by the court. Other factors relevant to assessing criminal history include the alien’s age at the time the crime was committed and whether or not he or she is a repeat offender;
Public safety or national security concerns;
Existence of an unexecuted final removal, deportation, or exclusion order;
Moral depravity or criminal tendencies reflected by a single serious crime or an ongoing or continuing criminal record, with attention to the nature, scope, seriousness, and recent occurrence of criminal activity;
Whether the alien has endorsed, promoted, supported, or otherwise espoused anti-American views or the views of a terrorist organization or group (including in social media content by, or involving an alien). This includes organizations who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, antisemitic ideologies, or has engaged in physical harassment of any person in furtherance of the organization or group;
Relevant country-specific facts and circumstances, such as insufficient vetting and screening information; and
Previous instances of fraud or false testimony in dealings with USCIS or any government agency.
If you are applying for deferred action, including DACA, you should consider submitting additional evidence of good moral character, such as letters from friends and family, proof of volunteer work, etc. If you have family members who are financially dependent on you, you should also provide evidence of that dependence.
