Biden is president. I want to apply for DACA. What do I do?

In the last week, I have received this inquiry by phone, email and internet contact form. People, citizens and non-citizens, are excited by the end of Trump-era anti-immigrant policies and optimistic about President Biden’s changes. As I’ve already written, changes will be slow, confusing and likely less beneficial than most of us are hoping for. DACA, or Deferred Action for Childhood Arrivals, is no exception. The DACA program was reinstated by the courts just before the transition of presidential administrations, and President Biden has already stated his commitment to maintaining, and maybe improving, DACA. But, there have been no changes or improvements to the program, yet. It is the same now as the day President Obama created it.

The first question an aspiring applicant for DACA must ask and answer is, am I eligible? A person is eligible for DACA if you:

• Were under the age of 31 on June 15, 2012
• Arrived in the US before turning 16 years old
• Resided in the US continuously beginning on or before June 15, 2007 to the present
• Were physically present in the US on June 15, 2012 and when applying for DACA
• Had no lawful status on June 15, 2012
• Are currently in school in the US, graduated high school in the US, obtained a GED or are currently taking GED classes
• Have not been convicted of a felony, significant misdemeanor or three or more misdemeanors and do not poste a threat to national security or public safety.

If you are eligible for DACA, the next question to ask is what are the pros and cons of applying. The pros are more obvious. You would be protected from removal from the United States for two years and you would receive work authorization for two years. The cons are more speculative and less obvious. Firstly, by applying for DACA you are telling immigration authorities who you are, that you have no legal status, and where you are. In other words, you are putting yourself on the radar. This means that if the DACA policy disappears again, like it did under the Trump administration, you could be much more easily located for deportation. So, if you are currently off the radar, you might not want to sacrifice that anonymity for a temporary solution. On the other hand, the benefit of the work authorization may be worth the risk. If you are already on the radar because you have been ordered removed, you have already applied for legal or protected status, or for some other reason, there is probably no downside to applying for DACA.

If you are not currently eligible for DACA, do not apply. There are no exceptions to the eligibility requirements. If you are not eligible, the best thing you can do is monitor changes in the law and confirm any changes with a reliable attorney before taking any action. For instance, my office maintains a list of people who may benefit from changes in immigration law so we can inform them when/if there is a change. The media, non-lawyers and even lawyers circulate a lot of bad information and speculation anytime there is a mention of change and it important to protect yourself by vetting that information with a reliable attorney before spending any money or filing any applications.

The last category of people are those who meet the basic eligibility requirements, but who may have other barriers such as criminal arrests, prior immigration fraud, domestic violence restraining orders or something else that makes approval of an application possible, but uncertain. People in this category must evaluate all the details with an attorney before making any decision. Applying and denial could result in deportation, so it is not something to gamble with; it is not something to try with the hope it works out and the thought to try to fix it if it doesn’t work out. IF it doesn’t work out, there may be no opportunity to fix it.

Ultimately, there is reason to be cautiously optimistic about the next few years in immigration law, but only cautiously optimistic.